develafii 


!!li|l';!i|i 


i  inllieiiiililia 


mm 


iiiiii 


iiilitiiiil 

1! 


I 


M 


i  H.H    ; 


ill 


ilillll 


UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


AMERICAN   CITIZEN   SERIES 

EDITED  BY 

ALBERT  BUSHNELL  HART,  LL.D. 


ORGANIZED    DEMOCRACY 

AN  INTRODUCTION   TO    THE  STUDY 
OF  AMERICAN  POLITICS 

FREDERICK  A.   CLEVELAND,  Ph.D.,  LL.D. 


AMERICAN  CITIZEN  SERIES 

Edited  by  Albert  Bushnell  Hart,  LL.D. 


Outline  of  Practical  Sociology ;  with  Special  Reference 

to  American  Conditions. 
By  Carroll  D.  Wright,   President  of  Clark  College. 
With  Maps  and  Diagrams.     Crown  8vo. 

Actual    Government    as    Applied     under    American 

Conditions. 
By  Albert  Bushnell  Hart,  LL.D.,  Eaton  Professor  of 
the  Science  of  Government  in  Harvard  University.     With 
6  Colored  Maps  and  ii  other  Illustrations  and  Diagrams. 
Crown  8vo. 

Financial  History  of  the  United  States. 
By  Davis  R.  Dewey,  Ph.D.,  LL.D.,  Professor  of  Eco- 
nomics  and   Statistics  in  the  Massachusetts  Institute  of 
Technology.     With  Diagrams.     Crown  8vo. 

Constitutional  Law  in  the  United  States. 
By  Emlin  McClain,  LL.D.,  sometime  Lecturer  on  Consti- 
tutional Law  at  the  State  University  of  Iowa.   Crown  8vo. 

Principles  of  Economics;   with  Special  Reference  to 

American  Conditions. 
By  Edwin  R.  A.  Seligman,  Ph.D.,  LL.D.,  McVickar 
Professor  of  Political  Economy  in  Columbia  University. 
With  6  Colored  and  22  other  Diagrams.     Crown  8vo. 

Organized  Democracy;  An  Introduction  to  the  Study 

of  American  Politics. 
By  Frederick  A.  Cleveland,  Ph.D.,  LL.D.    Crown  8vo. 
Public  Opinion  and  Popular  Govenmient. 
By  A.  Lawrence  Lowell.     President  of  Harvard  Uni- 
versity.    Crown  8vo. 


LONGMANS,  GREEN,  &  CO.:  NEW  YORK 


ametlcan  Citizen  ^:erie$ 


Organized  Democracy 

AN     INTRODUCTION     TO     THE 
STUDY  OF  AMERICAN  POLITICS 


BY 

FREDERICK  A.  CLEVELAND,  Ph.D.,  LL.D. 


LONGMANS,    GREEN,    AND    CO. 

FOURTH  AVENUE  &  30TH  STREET,  NEW  YORK 
LONDON,  BOMBAY  AND   CALCUTTA 

1913 


COPYRIGHT,    19 13, 
BY  LONGMANS,    GREEN,   AND   CO. 


THE-PLIMPTON'PRESS 
NORWOOD-MASS'U-S'A 


0  Preface 

A  The  theme  of  this  volume  is  popular  sovereignty.  It 
speaks  of  a  scheme  of  government  in  the  nature  of  an 
incorporated  trusteeship  —  one  in  which  the  officer  holds 
the  status  of  trustee  and  the  citizen  is  both  principal  and 
beneficiary.  The  picture  drawn  is  one  of  the  continuing 
evolution  of  the  means  devised  by  organized  citizenship 
for  making  its  will  effective;  for  determining  what  the 
(^  government  shall  be,  and  what  the  government  shall  do ; 
^^  for  making  the   qualified   voter   an   efficient  instnunent 

•I^Vn  through  which  the  will  of  the  people  may  be  expressed ; 
for  making  officers  both  responsive  and  responsible.  Its 
portrayals  are  cast  on  a  background  of  citizen  right,  citizen 

I      duty,  and  citizen  responsibility.     The  closing  pages  speak 

•^  ' '  of  the  momentous  forces  which  are  now  at  work  in 
America  to  make  the  people  as  sovereign  more  efficient 
in  the  exercise  of  control  over  their  government  —  over 
the  institutions  and  agents  created  by  them  for  render- 
ing public  service.  The  view  point  taken  is  the  present- 
day  concept  that  government  should  exist  for  common 
welfare;  description  and  critical  comment  aim  to  trace 
the  continuing  adaptation  of  our  welfare  agencies  to  the 
service  of  the  people. 

Much  of  the  material  for  the  first  two  parts  of  this 
volume  was  originally  published  in  1898  in  an  essay  en- 
titled "The  Growth  of  Democracy  in  the  United  States  — 
the   evolution   of   popular   cooperation  in   government." 


vi  Preface 

This  work  having  come  to  the  favorable  attention  of  a 
number  of  persons  interested  in  the  study  of  government, 
the  first  effort  was  to  revise,  then  to  rewrite;  finally, 
however,  more  than  half  of  the  text  was  discarded  alto- 
gether, and  what  remained  was  amended  and  supplemented 
to  present  a  view  and  cover  a  phase  of  institutional  Ufa 
that,  in  the  literature  of  politics,  has  been  to  a  large 
degree  neglected. 

A  number  of  friends  have  assisted  materially  in  the 
preparation  of  copy  for  the  publishers  and  in  seeing  it 
through  the  press.  I  feel  called  upon  here  to  make  men- 
tion of  special  obHgation  to  Professor  Albert  Bushnell 
Hart,  the  editor  of  this  series.  But  for  his  oft-repeated 
suggestion  the  revision  would  not  have  been  undertaken; 
from  time  to  time  he  has  also  contributed  many  valuable 
criticisms.  Doctor  George  D.  Leutscher  has  been  of  great- 
est assistance  in  the  collection  of  added  materials,  in  the 
preparation  of  bibhographies  and  index  matter,  and  in 
checking  the  references  through  the  proof;  in  fact,  in 
every  phase  of  the  work. 

FREDERICK  A.  CLEVELAND 

Washington,  D.  C,  May,  1913. 


Introductory  Note 

Democracy  is  a  changing  thing,  though  the  cynosure  of 
our  times.  There  was  a  time  when  the  world  of  thought 
saw  the  Empire  as  the  greatest  and  noblest  human  insti- 
tution. There  were  ages  when  the  Church  summed  up 
man's  desires  and  aspirations.  Above  both  the  temporal 
and  the  spiritual,  with  Americans,  are  the  People  as  the 
object  of  reverence  and  beHef  and  expectation. 

It  is  a  new  conception  of  the  world  and  of  humanity  — 
this  idea  that  the  mass  of  men  is  the  depository  of  wis- 
dom, and  the  only  guaranty  of  society.  In  this  be  ok 
Dr.  Cleveland  aims  to  make  us  see  this  mystic  People 
not  as  a  crude  heap  of  disagreeing  units,  but  as  an  organ- 
ism, a  conscious  whole,  a  living  body  of  many  members. 
His  has  been  the  task  of  applying  the  new  universal  doc- 
trine of  development  to  the  political  phenomena  of  today. 

In  Part  I,  therefore,  he  has  Hnked  together  the  princi- 
ples of  government  among  primitive  races ;  the  appearance 
of  forms  of  government  under  economic  pressure  and  the 
molding  and  restraining  influence  of  men  of  power;  the 
types  of  Democracy  produced  by  the  English  Colonies; 
and  the  early  formal  Constitutional  documents. 

In  Parts  II,  III,  and  IV,  the  author  analyzes,  and  in 
an  original  searching  fashion  describes,  the  methods  of 
translating  the  will  of  the  people  into  law  and  positive 
action.  This  involved  a  deep  study  of  the  suffrage, 
elections,  and  direct  legislation,  as  means  of   expressing 


viii  Introductory  Note 

public  opinion.  There  are  many  advantages  in  thus  plac- 
ing the  traditional  methods  of  expression,  alongside  each 
other.  The  Referendum  and  Initiative  are  thus  set  in 
rehef  against  the  background  of  other  attempts  to  realize 
the  same  ends  by  the  machinery  of  representation. 

Few  writers  have  gone  so  thoroughly  into  the  institu- 
tional means  of  transferring  into  energy  the  will  of  the 
People.  The  fundamental  difficulty  of  putting  the  com- 
posite will  into  the  thought  and  action  of  those  chosen 
to  public  office  is  fairly  faced  and  described. 

The  volume  is  founded  upon  an  earUer  volume  by 
the  same  author  on  Democracy;  but  in  plan,  in  scope, 
and  in  details,  this  is  a  new  and  an  original  treatment  of 
this  great  subject.  It  helps  the  Sovereign  People  to 
understand    that    most    difl&cult  of  all    subjects,   namely 

the  Sovereign  People. 

THE  EDITOR 


Contents 


SELECT  BIBLIOGRAPHY  OF  ORGANIZED   DEMOCRACY 

Page 
I.    Bibliography  and  Finding  Lists xxiv 

II.    Narrative  Works   on   the   Institutional   Foundations 

OF  the  American  Republic xxv 

III.    Formal  Descriptive  Works xxvi 

rv.   Select  Constitutional  Treatises xxviii 

V.    Select  Legal  Treatises xxviii 

VI.    The  Electorate  and  Election  Machinery     ....    xxix 
VII.    Direct    Participation    of   the   Electorate   in   Acts  of 

Government xxx 

VIII.    General  Problems  of  Popular  Government       .     .     .    xxxi 

IX.    Source  Material  on  American  Government  ....  xxxiii 

X.    Periodical  Material  on  Popular  Government    .     .      .  xxxv 


Part  I 

THE   FOUNDATIONS   OF  THE  AMERICAN  REPUBLIC 

Chapter 

I.  Conflict  between  Absolutism  and  Self-Government 

1.  References 3 

2.  The  Law  of  Survival 4 

3.  Industry  and  Self-Government S 

^4.   The  Predatory  Motive  in  Government 7 

5.  Weakness  of  Local  Self-Government 10 

6.  Limitations  of  Absolutism 10 

7.  The  Struggle  for  Supremacy ir 

8.  Dominance  of  Absolutism  in  Asia 11 

9.  Temporary  Supremacy  of  Absolutism  in  Europe      ...  13 

10.  Feudalism  the  Forerunner  of  the  Modern  State.      ...  14 

11.  English  Adaptation  to  Industrial  Welfare 16 

12.  The  Guild  and  the  Public  Corporation 19 

13.  The  Private  Corjjoration  as  a  Factor 19 

14.  The  Modem  Democratic  State 21 


X  Contents  [  Part  i. 

Chapter  Page 
II.   Fictions  of  Absolutism  Transplanted  to  America 

15.  References 23 

16.  The  Palatinate 23 

17.  The  Pure  Monarchy 24 

18.  The  Chartered  Company 25 

19.  Virginia  as  an  Investment  Company 26 

20.  Massachusetts  Bay  as  a  Self-Governing  Land  Company    .  28 

21.  Georgia  as  a  Chartered  Benevolent  Society 31 

in.  Self-Constituted  Colonies 

22.  References 34 

23.  The  Plymouth  Compact 34 

24.  Plymouth  Representative  Government 36 

25.  Fundamental  Orders  of  Connecticut 37 

26.  Union  of  Towns  in  Rhode  Island 39 

27.  Federation  of  Towns  in  New  Haven 43 

28.  Evolution  of  Representative  Towns 45 

IV.  The  Proprietary  Idea  in  Colonization 

29.  References 4^ 

30.  Basal  Idea  of  the  Proprietary 46 

31.  Proprietorship  of  Maryland 47 

32.  Proprietorship  of  New  York 48 

^$.   Proprietorship  of  New  Jersey 5° 

34.  Proprietorship  of  Pennsylvania Si 

35.  Proprietorship  of  Delaware 51 

36.  Proprietorship  of  New  Hampshire 5^ 

37.  Proprietorship  of  the  Carolinas 52 

V.  Summary  of  Colonial  Political  Ideals 

38.  References S6 

39.  Predatory  Theory  in  English  Colonization 56 

40.  Effect  of  the  Industrial  Motive  on  Fictions  of  Government  59 

41.  Working    out    of    a    Common  Type    of    Representative 

System 6° 

42.  Inevitable  Progress  of  Popular  Sovereignty  .      .      .      .      .  61 

43.  Organization  against  Predatory  Forces  from  within      .      .  62 

44.  Creation  of  an  Agency  to  Conserve  the  General  Welfare    .  63 

VI.  Basal  Principles  of  American  Government 

45.  References "S 

46.  The  Sovereignty  of  Citizenship 65 

47.  Origin  of  the  First  State  Constitutions 67 

48.  Distinction  between  Citizenship  and  Government   ...  68 

49.  The  Theor>'  of  Delegated  Powers 69 

50.  Constitution  JNIaking  Founded  on  Popular  Assent  ...  71 

51.  Legislatures  as  Constitution  Makers 72 


Parts  I.,  ii.i                     Contents  xi 

Chapter  Page 

VI.   Basal  Peinciples  of  American  Government  (contintted) 

52.  Government  as  a  Trusteeship 73 

53.  Division  of  Powers  in  a  Federation 75 

54.  Distribution  of  Powers  among  Ofi&cials 77 

55.  Ofl&cers  as  Custodians  and  Administrators 77 

56.  The  Problems  of  Government 79 


Part  II 

PROVISIONS  FOR  MAKING  CITIZENSHIP  EFFECTIVE 

VII.  Rights  Retained  by  Citizens  as  against  the  Government 

57.  References 80 

58.  Citizenship  and  Government 8i 

59.  Freedom  to  Think  and  to  Express  Thought        ....  82 

60.  Religious  Thought  as  a  Crime 82 

61.  Malicious  Thought  toward  Government  as  a  Crime      .      .  84 

62.  Libel  against  the  Government 85 

63.  American  Freedom  from  Restraints  on  Thought      ...  86 

64.  Right  of  Petition 90 

65.  The  Right  to  Carry  Arms 91 

66.  The  Right  of  Assembly 95 

VIII.  Duties  and  Responsibilities  of  Citizens  as  Such 

67.  References 97 

68.  Distinction  between  Citizen  and  Voter 97 

69.  Citizen  Organization  the  Forenmner  of  Democratic  Gov- 

ernment       98 

70.  Constitutional  Duties  and  Responsibilities  of  Citizens  as 

Such 99 

71.  Citizen  Activities  for  Determining  Welfare  Needs  .     .     .  100 

72.  Citizen  Organizations loi 

73.  Virility  of  American  Citizenship 103 

74.  Public  Aspect  of  American  Philanthropy 105 

75.  Provisions  Made  for  Impressing  Citizen  Will  on  the  Elec- 

torate    106 

76.  Means  for  Determining  what  the  Government  is  Doing     .  106 

77.  The  Duty  of  Citizens  to  Instruct  their  Officers  .      .      .      .  iii 

78.  The  Duty  of  Remonstrances 112 

IX.  Direct  Participation  of  Citizens  in  Acts  of 

Government 

79.  References 113 

80.  The  Duty  to  Furnish   Information  as  a  Basis  for  Civil 

Action 114 


Xii  Contents  [  Parts  IL,  III. 

Chapter  Page 
IX.   Direct  Participation  of  Citizens  in  Acts  of 
Go\t;rnment  {continued) 

8i.   The  Citizen  in  Applications  for  Injunction 115 

82.  The  Citizen  in  Applications  for  Mandamus 117 

83.  The  Citizen  in  Applications  for  Quo  Warranto     .    .      .      .  118 

84.  Citizens  as  Informants  to  Grand  Juries 119 

85.  Direct  Participation  in  Legislation 120 

86.  The  Citizen's  Participation  in  the  Arrest  of  Offenders  .      .  124 

87.  More  Recent   Development  of  Citizen  Co-operation  in 

Administration 125 


Part  III 

THE  ELECTORATE  AS  AN  AGENCY  FOR  EXPRESSING 
PUBLIC  OPINION 

X.  Evolution  of  Qualifications  for  the  Suffrage 

88.  References 130 

89.  Slow  Changes  in  Political  Institutions 131 

90.  Comparison  of  Monarchical  and  Popular  Traditions  in 

the  Colonies 131 

91.  Summary-  of  Colonial  Qualifications  for  Voting      .      .      .  132 

92.  Colonial  Qualifications  of  Church  IMembership  for  Voting  133 

93.  Colonial  Exclusion  of  Sectarians  from  Voting  ....  134 

94.  Moral  Qualifications  for  Colonial  Voting 136 

95.  Property  Qualifications  for  Colonial  Voting      ....  137 

96.  State  Property  Qualifications  for  Voting 141 

97.  Colonial  Tax  QuaHfications  for  Voting 143 

98.  Manhood  Suffrage  in  the  States 145 

99.  Race  and  Status  Qualifications  for  the  Suffrage     .      .      .  147 

100.   Sex  Qualifications  for  the  Suffrage 149 

loi.   Summary  of  Present  Qualifications  for  the  Suffrage    .     .  149 

XI.  Woman  Suffrage 

102.  References 151 

103.  Citizenship  not  Dependent  on  Sex 151 

104.  Relation  of  Woman's  Suffrage  to  the  Ftmctions  of  Gov- 

ernment   153 

105.  Community  of  Interest  in  the  Conservation  of  the  State  155 

106.  Community  of  Interest  in  the  Conservation  of  the  Indi- 

vidual        155 

107.  Community  of  Interest  in  Business  Affairs       ....  158 

108.  Social  Motive  Predominant  in  Woman 159 


Part  III.]  Contents  xiii 

Chapter  Page 
XI.   Woman  Sutfrage  {continued) 

109.   Social  Convention  as  a  Limitation 159 

no.   Referendum  of  Women  on  Woman  Suffrage      ....  162 

111.  The  History  of  the  Woman  SuiJrage  Movement  in  Eng- 

land          .      .  163 

112.  Early  Controversies  over  Woman  Suffrage  in  America     .  164 

113.  Beginning  of  Organized  Woman  Suffrage  Agitation     .      .  165 

114.  School  Suffrage 166 

115.  Woman  Suffrage  and  Local  Finances 167 

116.  Full  Woman  Suffrage 167 

XII.  Exclusion  of  the  Unfit  from  the  Suffrage 

117.  References 169 

118.  Positive  and  Negative  Qualifications 169 

119.  Citizenship  as  a  Qualification 170 

120.  Protest  against  Non-Citizen  Electors 170 

121.  Reading  and  Writing  Test 172 

122.  Educational  Tests  in  the  South 173 

123.  Restrictions  against  Improvidence i74 

124.  Pauperism  as  a  Disqualification i7S 

125.  Insanity  as  a  Disqualification i7S 

126.  Immorality  and  Criminality  as  a  Disqualification       .      .  175 

127.  Bearing  Arms  against  the  Country  as  a  Disqualification  176 

128.  Compulsory  Voting 176 

129.  Laws  against  Intimidation  of  Voters 178 

XIII.  Local  Government  by  the  Electorate 

130.  References ^79 

131.  Exercise  of  Government  by  an  Electorate  never  Aban- 

doned         179 

132.  Popular  Legislative  Assemblies  in  Local  Government       .  180 

133.  County,  Parish,  Town  and  Village i8i 

134.  Transformation  of  Town  Governments 186 

135.  Relative  Advantages  of  Popular  Control  of  Towns      .      .  187 

XIV.  Formulation  of  Electoral  Issues 

136.  References '9^ 

137.  Individual  Statements  of  Issues 192 

138.  Colonial  Committees  of  Correspondence i94 

139.  Caucuses  of  Congress  and  Legislature 196 

140.  Convention  Platforms ^97 

141.  Discussion  of  Issues  by  Candidates 198 

142.  Definition  of  Issues  by  Party  Committees i99 

143.  Statements  of  Issues  through  Campaign  Literature     .      .  199 

144.  Statements  of  Issues  through  the  Press 200 


XIV 


Contents  [  Part  ill. 


Chapter  Page 

XV.  Nomination  of  Candidates 

145.  References 201 

146.  Self-Nomination 201 

147.  Nominations  by  Correspondence 203 

148.  Nominations  by  Caucuses  of  Congress  and  Legislatures  .  204 

149.  Nominations  by  Local  Conventions  and  Mass  Meetings  .  205 

150.  Nominations  by  County  Conventions 206 

151.  Example  of  a  County  Convention 207 

152.  Early  State  Nominating  Conventions 209 

153.  Federalists  Adopt  the  Convention  System 211 

154.  Downfall  of  the  Caucus  Nominating  System    .      .      .      .  211 

155.  Transition  in  Presidential  Nominations 212 

156.  First  National  Nominating  Convention 213 

157.  Growth  of  Rules  of  the  National  Conventions       .      .      .  214 

158.  Methods  Employed  to  Subvert  the  Purposes  of  the  Con- 

vention       216 

159.  Attempts  to  Reform  the  Convention  System    ....  216 

160.  Growth  of  the  Direct  Primary  System 218 


XVI.  Registration  of  Voters 

161.  References 220 

162.  Problem    of    Increasing    the    Responsibility    of    the 

Voters 220 

163.  Simplicity  of  Early  Election  Machinery 221 

164.  Development  of  Registration 222 

165.  Early  New  York  Registration  Laws 222 

166.  Principles  of  Effective  Registration 224 

XVII.  Primary  Elections 

167.  References 228 

168.  Uniform  Primary  Regulations 228 

169.  Simultaneous  Primaries 229 

170.  Form  of  Primary  Ballot 230 

171.  Tests  of  Party  Aflaliation 230 

172.  Prior  Declaration  of  Party  Afi&liation 231 

173.  Declaration  of  Affiliation  at  the  Polls 233 

174.  Lack  of  Uniformity 234 

175.  Convention  System  Regulated  by  Law 234 

176.  Essentials  of  the  Direct  Primary 235 

177.  Methods  of  Limiting  the  Number  of  Candidates    ...  237 

178.  Relation  of  the  Primary  to  Parties 238 

179.  Plurality  Votes 239 

180.  Ignoring  of  Party  Designations 240 

181.  Formation  of  Platforms  under  Direct  Primaries     ...  241 


Parts  III.,  IV.  ]                  Contents  xv 

Chapter  Page 

XVIII.  Regulation  of  Political  Campaigns 

182.  References 243 

183.  Danger  of  Unrestricted  Campaigning 243 

184.  Indifference  of  the  Voter 245 

185.  Placing  Issues  before  the  Voters 246 

186.  Courts  of  Justice  and  Electoral  Courts 247 

187.  Use  of  Money  in  Elections 248 

188.  Contributions  by  Corporations 248 

189.  Legislation  against  Corrupt  Practices 249 

190.  Legislation  on  Political  Committees  and  Treasurers    .      .  250 

191.  Sources  of  Contributions 252 

192.  Limitations  on  Objects  of  Expenditure 253 

193.  Limitations  on  Maximum  Expenditure 254 

194.  Filing  of  Statements  of  Expenditure 255 

195.  Enforcement  of  Statutes 256 

196.  Payment  of  Expenses  of  Candidates  by  the  State       .      .  257 

197.  Statements  and  Arguments  Distributed  by  the  State       .  259 

XIX.  Legal  Safeguards  in  Casting  and  Counting  the 
Ballots 

198.  References 262 

199.  Ballot  Reform  and  the  Australian  Ballot 262 

200.  Party  Column  Ballot 263 

201.  Objections  to  the  Party  Column 265 

202.  Voting  Machines 265 

203.  Bi-Partisan  Election  Boards 266 

204.  Watchers  and  Challengers 267 

205.  Canvassers  of  the  Votes 268 

206.  Short  Ballot  Movement 269 

207.  Subdivision  of  Elections 270 

208.  Diminishing  the  Number  of  Elective  Officers    ....  271 

209.  Defects  of  Short  Ballot  System 272 


Part   IV 

UTILIZATION  OF  THE  ELECTORATE 

XX.  PopxiLAR  Votes  on  Constitutional  Provisions 

210.  References 273 

211.  The  Utilization  of  the  Electorate 273 

212.  Genesis  of  Referenda  on  Constitutional  Provisions      .      .  275 

213.  Analysis  of  Constitutional  Referenda 277 

214.  Failure  to  Provide  for  Amendment 279 

215.  Council  of  Censors 280 

216.  Taking  the  Sentiment  of  the  People  on  Need  of  Revision  282 


XVI 


Contents  [  Part  iv. 


Chapter  Page 
XX.   Popular  Votes  on  Constitutional  Provisions  {contintied) 

217.  Kentucky  System  of  Gauging  Popular  Sentiment        .      .  283 

218.  Submission  of  Amendments  by  Legislatures      ....  284 

219.  Amendments  by  Two  Legislative  Acts  and  Subsequent 

Popular  Vote 286 

220.  Amendments  by  Legislative  Act,  Popular  Vote  and  a 

Second  Legislative  Act 287 

221.  Amendments  by  One  Legislative  Act  and  Popular  Vote  .  288 

222.  Comparison  of  Use  of  Three  Methods         289 

XXI.  Popular  Votes  on  Legislation  without  Constitu- 
tional Provisions 

223.  References 292 

224.  Creation  of  the  Federal  Government 292 

225.  Hierarchy  of  Governmental  Authorities 294 

226.  Evolution  of  the  Popular  Vote  in  States 296 

227.  Rare  Popular  Votes  under  Federal  Law 297 

228.  Popular  Votes  on  Schools 297 

229.  Popular  Votes  on  Territorial  Questions 299 

230.  Popular  Votes  on  Social  and  Moral  Questions        .      .      .  299 

231.  Analysis  of  Subjects  for  Popular  Votes 300 

XXII.  Judicial  Decisions  on  Popular  Participation  in 
Legislation      j 

232.  References 303 

233.  Early  Cases  Affirming  Popular  Votes 303 

234.  First  Cases  Denying  the  Right  of  Referendum       .      .      .  305 

235.  Reasons  Advanced  in  Support  of  Popular  Votes    .      .      .  307 

236.  Criticism  of  the  Court  Arguments 308 

237.  Meaning  of  Guaranty  of  a  Republican  Government    .      .  311 

238.  Evolution  of  Decisions  on  the  Constitutionality  of  the 

Referendum 314 

239.  Argument  that  Legislative  Powers  may  not  be  Delegated  316 

240.  Argument  that  Local  Referendum  is  not  a  Delegation  of 

Powers 317 

241.  Participation  in  Legislation  a  Proper  Function  of  the 

Electorate 318 

242.  Application  of  the  Referendum  to  State- Wide  Acts     .     .  320 

XXIII.   Constitutional  Provisions  for  the  Referendum  on 
Specific  General  Statutes 

243.  References' 322 

244.  Growth  of  Constitutional  Referenda 322 

245.  Territorial  Boundaries 324 

246.  Suffrage 324 

247.  State  Debt 32$ 


Parts  IV.,  v.]  Contents  xvii 

Chapter  Page 

XXIII.  Constitutional  Provisions  for  the  Referendum  on 

Specific  General  Statutes   {continued) 

248.  State  Capitals 327 

249.  State  Banks 328 

250.  Sale  of  School  Land 33° 

251.  Aid  to  Railroads 33o 

252.  Taxation 33i 

253.  Summary  of  State-Wide  Referenda 332 

XXIV.  The  More  Recent  General  Provisions  for 

Referendum 

254.  References 334 

255.  Development  of  the  General  Provisions  for  Referendum  .  335 

256.  Present  Status  of  the  Initiative  and  Referendum  .      .      .  336 

257.  Analysis  of  Referendum  Provisions 336 

258.  Difficulties  in  Working  the  Initiative  and  Referendum     .  337 

259.  The  Referendum  in  Oregon 339 

260.  Information  for  Voters  in  Oregon 340 

261.  Use  of  Initiative  in  Oregon 341 

XXV.  Local  Legislation  by  Popular  Vote  under 
Constitutional  Provisions 

262.  References 342 

263.  Establishing  Local  Jurisdictions 343 

264.  Location  of  County  Seats 344 

265.  Township  Organization 345 

266.  Local  Taxation 345 

267.  Local  Debt  and  Stock  Subscription 348 

268.  Various  Other  Subjects 35 1 

269.  Subjects  of  Local  Initiative 352 

270.  Extension  of  Initiative  and  Referendum  to  Localities       .  353 

271.  Effect   of   Commission   Government    on   Initiative    and 

Referendum 354 

272.  Effect  of  Home  Rule  on  Initiative  and  Referendum    .      .  355 


Part  V 

PROVISIONS  FOR  MAKING  PUBLIC  OFFICERS 
RESPONSIBLE  AND   RESPONSIVE 

XXVI.  Election  of  Legislators 

273.  References 35^ 

274.  Distinction    Between    Legislative    and    Administrative 

Officers 356 


XVlll 


Chaptfr 


Contents  [Part  v. 


Page 


XXVI.    Election  of  Legislators   [continued) 

275.  Colonial  Legislatures  Directly  Elected 357 

276.  Colonial  Choice  of  Councillors 35^ 

277.  Indirect  Election  of  Federal  Senators 358 

278.  Deadlocks  in  Electing  Federal  Senators 360 

279.  Movement  for  Direct  Choice  of  Senators 362 

280.  State  Laws  on  Popular  Election  of  Senators     ....  363 

281.  Effect  of  Popular  Designation  of  Senators 365 

282.  Oregon  System  for  Choice  of  Senators 367 

283.  Effect  of  Primary  Vote  on  the  Legislature 368 

284.  Choice  of  City  Councils 3^9 

XXVII.  Protection  of  Legislators 

285.  References 37° 

286.  Freedom  of  Speech  and  Debate 37° 

287.  Freedom  from  Arrest 37i 

288.  Relief  against  the  Lobby 372 

289.  Bribery  of  Legislators 373 

XXVIII.  Means  of  Making  Legislators  Responsive  to  the 
Popular  Will 

290.  References 37° 

291.  Ante-Election  Methods  of  Impressing  the  Popular  Will 

on  Candidates 37^ 

292.  Petition  and  Remonstrance 377 

293.  Public  Hearings 378 

294.  Popular  Initiation  in  Legislation 379 

295.  Prorogation 380 

296.  No  Direct  Control  of  Legislators  in  Office 380 

297.  Recall  in  State  Government 381 

298.  Application  of  Recall  in  Municipalities 382 

299.  Actual  Cases  of  Mimicipal  Recall 383 

300.  Legislative  Reference  Bureau 384 

301.  Records  of  Votes  in  Legislatures 384 

302.  Sessions  Open  to  Public 38s 

XXIX.  Restraint  on  Legislators  by  Bills  of  Rights 

303.  References 38? 

304.  Doctrine  of  Inalienable  Rights 387 

305.  Enumeration  of  Natural  Rights 388 

306.  Social  Status  of  Citizens 389 

307.  Rehgious  Freedom 389 

308.  Free  Speech,  Free  Press  and  Assembly  ........  389 

309.  Right  to  Bear  Arms 39° 


Part  v.]                         Contents  xix 

Chapter  Page 
XXIX.   Restraint  on  Legislators  by  Bills  of  Rights 
(continued) 

310.  Rights  Guaranteed  by  the  Federal  Constitution    .      .      .  390 

311.  Limitation  on  State  Legislatures    in  the  Federal    Con- 

stitution    392 

312.  Limitations  on  State  Legislatures  in  State  Constitutions  392 

313.  Growing  Distrust  of  State  Legislatures 393 

XXX.  Responsibility  of  the  Executive  to  the  Will  of  the 
People 

314.  References 394 

315.  Limited  Authority  of  the  Executive  over  Legislature        .  394 

316.  Historical  Methods  of  Selecting  Governors       ....  395 

317.  Change  of  Methods  of  Selecting  State  E.xecutive  Ofi&cers  396 

318.  Method  of  Choice  of  President  of  the  United  States   .      .  397 

319.  Methods  of  Choice  of  Electors  of  the  President     .      .      .  398 

320.  Election  of  Municipal  Executive  in  Early  Municipalities  399 

321.  Elective  Mayoralty 399 

322.  Petition  of  Executive  OiEcers 400 

323.  Instances  of  Recall  of  Mayors 401 

XXXI.  Means  of  Fexing  the  Responsibility  of  Executive 
AND  Administrative  Officers 

324.  References 403 

325.  Rights  of  Inquiry  by  Citizens 403 

326.  Publication  of  Oflkial  Reports 405 

327.  Legislative  Inquiries 406 

328.  Impeachment  of  Executive  Ofl&cers 406 

329.  Removal  of  Elective  Officers 407 

330.  Removal  of  Appointive  Officers 408 

331.  Abolition  of  Executive  and  Administrative  Officers     .      .  409 

332.  Responsibility  of  the  Executive  through  the  Court      .      .  409 

333.  Limitation  of  the  Executive  by  Constitutional  Inhibitions  410 

334.  No  Executive  Power  to  Suspend  Laws 411 

335.  Suspension  of  Habeas  Corpus 412 

XXXII.  Limitations  on  th-E  Political  AcTrvaTY  of  Executtve 
Officials 

336.  References 4^4 

337.  Rise  of  the  Spoils  System 414 

338.  Civil  Service  Reform 416 

339.  The  Classified  Service 4^7 

340.  Limitations  on  Political  Assessments 418 

341.  Limitations  on  Offensive  Partisanship  of  Employees  .      .  419 

342.  Recent   Attitude  of   Presidents  on    Political  Action  of 

Employees 420 


XX 


Contents  [  Parts  v.,  VI. 


Chapter  Page 

XXXII.  Limitations  on  the  Political  Activity  of  Executive 

Officials   {continued) 

343.  Degree  of  Legal  Participation  of  Ofl&ce  Holders  in  Political 

Activity 421 

344.  Civil  Service  in  the  States  and  Municipalities  ....  423 

345.  Present  Status  of  the  Civil  Service  in  States     ....  425 

XXXIII.  Restraints  on  Judicial  Officers 

346.  References 426 

347.  Choice  of  Federal  Judges 427 

348.  Popular  Election  of  State  Judges 427 

349.  Contempt  Proceedings 428 

350.  Protection  of  Courts  against  Bribery 429 

351.  Relation  of  Judges  to  Questions  of  Policy       ....  430 

352.  Relation  of  Judges  to  Modern  Social  Questions      .      .      .  430 

353.  Recall  of  Judges 43^ 

354.  Argument  for  Recall  as  a  Method  of  Control    ....  433 

355.  Publicity  of  Court  Proceedings 434 

356.  Right  of  Judicial  Appeals 434 

357.  Removal  of  Judges 435 

358.  Restraint  of  Courts  by  Bill  of  Rights 435 


Part  VI 

CONCLUSION 

XXXIV.  The  Outlook  for  Democracy 

359.  The  Increasing  Demand  that  the  People  shall  Govern      .  438 

360.  A  Factor  of  Popular  Control  Overlooked 438 

361.  Dangers  which  Threaten  the  RepubHc 439 

362.  A  Condition  to  be  Reckoned  with 441 

363.  Lessons  to  be  Drawn  from  Local  Self-Govemment      .      .  442 

364.  "Boss  Rule"  the  Product  of  Citizen  Neglect    ....  443 

365.  Reasons  for  Failure  in  Efforts  to  Reform 444 

t    366.   Public  Spirit  and  Efficient  Self-Govemment     ....  445 

367.  The  Omen  of  Woman  Suffrage 446 

368.  The  Hope  of  the  Future 447 

XXXV.  Means  Still  to  be  Provided  for  Making  the  Popular 
Will  Effective 

369.  The  Law  of  Social  Advantage  Dominant 449 

370.  Means  already  Provided  for  Making  Government  Efficient  451 


Part  VI.]                        Contents  xxi 

Chapter  Page 
XXXV.   Means  Still  to  be  Provided  for  Making  the 
Popular  Will  Effective   {continued) 

371.  Constitutional   Provisions    for   Planning  and   Executing 

Plans 453 

372.  Responsibility  Clearly  Defined 453 

^j^.   Means  Still  to  be  Provided 455 

374.  The  Budget 455 

375.  The  Balance  Sheet 459 

376.  The  Operation  Account 460 

377.  Efficiency  Records  and  Reports 461 

378.  Cost  Accounts  as  Related  to  the  Problem  of  Efl&ciency    .  462 

379.  "  Let  there  be  Light " 464 


SELECT  BIBLIOGRAPHY   OF   ORGANIZED 
DEMOCRACY 

Until  a  few  years  ago  the  student  of  American  government 
and  politics  had  little  to  guide  him  in  coming  to  a  conclusion 
upon  vital  questions  which  are  daily  set  before  the  American 
citizen  and  voter.  The  books  on  American  government  were 
of  two  sorts:  first,  disquisition  on  government  in  general; 
second,  narrow  and  often  technical  treatises  on  the  Constitu- 
tion of  the  United  States.  The  underlying  poHtical  process  by 
which  selected  individuals  were  placed  where  they  could  make 
changes  in  constitutions,  laws,  and  forms  of  government  was 
almost  ignored. 

A  typical  book  of  the  former  class  is  The  Federalist  which  is 
an  argument  to  show  that  the  new  federal  constitution  agreed 
with  the  principles  of  human  government  which  had  been 
developed  and  stated  in  the  Revolution.  Of  the  latter  class 
are  such  laborious  and  sincere  books  as  Flanders,  Exposition 
of  the  United  States  Constitution,  from  which  one  would  hardly 
know  that  there  were  such  things  as  caucuses,  primaries,  con- 
ventions, parties  and  popular  votes.  Alexis  de  Tocqueville, 
in  the  thirties,  was  the  first  writer  on  American  government 
to  see  the  significance  of  the  local  governments;  and  Francis 
Lieber,  in  the  sixties,  was  the  first  American  writer  on  the  phi- 
losophy of  popular  government.  James  Bryce,  in  his  American 
Commonwealth,  in  1890,  opened  up  a  new  vista  of  American  gov- 
ernment as  a  whole,  directed  by  the  American  people  acting 
through  a  complicated  political  system. 

One  reason  for  the  slowness  of  the  growth  of  a  literature 
on  popular  government  as  it  actually  works  is  the  difficulty 
of  finding  exact  data.  Mr.  Bryce's  first  edition  was  founded 
to  a  considerable  degree  on  information  directly  acquired  by 


xxiv  Select  Bibliography 

the  writer  from  conversation  with  those  engaged  in  American 
government,  and  those  who  criticised  it.  In  the  last  twenty 
years,  however,  a  multitude  of  first  hand  works  have  been 
poured  forth  by  writers  inside  and  outside  of  government; 
ofl&cial  reports  of  all  kinds  have  been  enlarged  and  made  more 
accessible;  and  numerous  societies  have  poured  out  proceedings 
and  pubUcations  full  of  pertinent  and  well-digested  information. 
There  is,  therefore,  no  longer  excuse  for  guessmg  about 
American  government,  even  in  its  latest  and  most  novel  forms. 
Direct  popular  government  has  been  the  battleground  for 
sharp  hostiUties;  upon  it  has  converged  a  battery  of  inquiry. 
The  main  difficulty  in  writing  such  a  volume  as  this  has  been 
to  analyze  the  subject  and  to  clear  it  of  preconceived  theories 
of  government.  The  bibhography  which  follows  has  been  pre- 
pared by  Dr.  G.  D.  Luetscher,  with  some  suggestions  from  the 
editor  of  the  series. 

I.  Bibliography  and  Finding  Lists 

Channing,  Edward,  Hart,  Albert  Bushnell,  and  Turner, 
Frederick  Jackson.  Guide  to  the  Study  and  Reading  of  American 
History.  (Boston,  etc.,  1912.) — A  complete  up  to  date  biblio- 
graphical guide  for  the  historical  portions  of  the  text:  especially 
valuable  are  the  bibliographies  given  under:  Early  Settlements 
(§§  III  to  146);  Constitutional  Changes  during  the  Revolution 
(§§  158,  159);  English  and  Colonial  PoUtical  Institutions  (§§  163, 
164);  Confederation  and  the  Constitution  (§§  166,  172,  175); 
PoUtics  and  Parties  (§§  179,  185,  272). 

Foster,  William:  Eaton.  References  to  the  Constitution  of  the 
United  States.  (N.  Y.,  1890.)— The  most  serviceable  bibliog- 
raphy on  the  Constitution  up  to  its  date. 

Fletcher,  William  Isaac.  The  A.  L.  A.  Index:  An  Index  to 
General  Literature.  (2d  ed.,  Boston,  1901.)  —  Indices,  essays, 
sketches,  publications  of  societies,  etc.  The  best  guide  to  collected 
essays. 

Hart,  Albert  Bushnell.  Manual  of  American  History,  Diplo- 
macy and  Government.  (Cambridge,  1908.)  —  Especially  valuable 
for  bibUographies  on  current  constitutional  and  political  questions. 


Finding  Lists  xxv 

Hart,  Albert  Bushnell,  editor.  The  American  Nation:  A  History. 
(27  vols.,  N.  Y.,  1904-1908.)  —  Each  volume  contains  a  critical 
essay  on  the  bibliography  of  the  period  which  it  covers. 

Jones,  Leonard  Augustus.  An  Index  to  Legal  Periodical  Literature. 
(2  vols.,  Boston,  1888,  1899,  and  a  3d  vol.  announced.)  —  Best 
guide  to  articles  on  government  found  in  law  and  general  periodi- 
cals up  to  its  date. 

Larned,  Joseph  Nelson,  editor.  The  Literature  of  American  His- 
tory: A  Bibliographical  Guide.  (Boston,  1902.) — Bibliographies 
on  more  than  4,000  titles  annotated  by  experts. 

Library  oe  Congress.  Division  of  Bibliography:  Select  List  of 
References  on  Compulsory  Voting  (Washington,  191 2);  List  of  Ref- 
erences on  Primary  Elections,  Particularly  Direct  Primaries  (Wash- 
ington, 1905);  Select  List  of  References  on  Corrupt  Practices  in 
Elections  (Washington,  1908);  Select  List  of  References  on  the  Short 
Ballot  (Washington,  191 2);  Select  List  of  References  on  the  Initia- 
tive, Referendum  and  Recall  (Washington,  191 2) ;  List  of  References  on 
the  Popular  Election  of  Senators  (Washington,  1904);  List  of  Works 
Relating  to  Political  Parties  in  the  United  States  (Washington,  1907). 

O'Flynn,  Josephine.  A  Reading  List  of  Books  and  Parts  of  Books 
on  Woman  Suffrage.     (Bulletin  of  Bibliography,  Boston,  1910.) 

Poole,  Willlw^  Frederick,  Fletcher,  William  Isaac,  and  others. 
Poole's  Index  to  Periodical  Literature,  1802-1881.  (Rev.  ed.,  2 
vols.,  Boston,  etc.,  1893.)  —  Five  Supplements  from  January,  1882, 
to  January,  1907.  (Boston,  1887-1908).  —  Continued  by  The 
Annual  Literary  Index,  1892-1904,  and  The  Annual  Library  Index, 
190S-.     (N.  Y.,  1893-.) 

RiNGWALT,  Ralph  Curtis.  Briefs  on  Public  Questions,  with  Se- 
lected Lists  of  References.  (N.  Y.,  1906.)  —  Primarily  for  the  use 
of  debaters;   classified  references  on  current  topics. 

Wisconsin  Free  Library  Commission,  Legislative  Reference 
Department,  Bulletins.  Lobbying  (No.  2,  1906);  Corrupt  Prac- 
tices (No.  3,  1906;  No.  23,  191 1);  Primary  Election,  the  Tests  of 
Party  Affiliation  (No.  13,  1908);  Initiative  and  Referendum  (No. 
II,  1907;  No.  21,  1910);   Recall  (No.  12,  1907). 

II.  Narrative  Works  on  the  Institutional  Foundations  of 
the  American  Republic 

Avery,  Elroy  McKendree.  History  of  the  United  States  and  its 
People  from  their  Earliest  Records  to  the  Present  Time.  (Cleveland, 
7  volumes  published  up  to  1910.)  —  Very  full  and  richly  illustrated. 


xxvi  Select  Bibliography 

Bancroft,  George.  History  of  the  United  States.  (lo  vols.,  Bos- 
ton, 1834-1874;  Author's  Last  Revision  (6  vols.,  N.  Y.,  1883- 
1885.)  —  These  volumes  contain  a  philosophical  discussion  of 
institutional  developments  during  the  Colonial  and  formative 
periods  of  the  American  republic  down  to  1789;  but  are  tinged 
with  a  purpose  to  prove  the  Revolution  a  protest  against  tyranny. 

Channing,  Edward.  History  of  the  United  States.  (N.  Y.,  etc., 
3  vols.,  published  up  to  191 2.)  —  Most  recent  study  of  Colonial 
and  Revolutionary  development. 

Curtis,  George  Ticknor.  Constitutional  History  of  the  United 
States.  (2  vols.,  1889,  1896.)  —  Volume  I  is  a  reprint  of  the  same 
author's  History  of  the  Constitution  (2  vols.,  1854.)  — Very  good 
on  the  origin  of  the  government. 

Frothingham,  Richard.  The  Rise  of  the  Republic  of  the  United 
States.  (Boston,  1872.)— A  lucid  though  dry  presentation  of 
the  causes  leading  to  Union;   reservoir  of  cogent  facts. 

Hart,  Albert  Bushnell,  editor.  The  American  Nation:  A  History. 
(27  vols.,  N.  Y.,  1904-1908.)  —  Many  chapters  on  institutional 
development:   see  the  index  volume. 

Howard,  George  Elliot.  An  Introduction  to  the  Local  Constitu- 
tional History  of  the  United  States.  (Vol.  I,  Baltimore,  1889;  no 
more  published.)  —  The  most  detailed  account  of  the  growth  of 
local  institutions  during  the  Colonial  period. 

Osgood,  Herbert  L.  The  American  Colonies  in  the  Seventeenth 
Century.  (3  vols.,  N.  Y.,  1904-1907.)  —  A  full  and  careful  account 
of  the  institutional  development  of  the  American  Colonies  in  the 
formative  period. 

ni.  Formal  Descriptive  Works 

Beard,    Charles    Austin.    American    Government    and    Politics. 

(N.  Y.,  1910.) — A  valuable  study  of  actual  government  based 

upon  the  best  modern  authorities. 
Bryce,  James.     The   American  Commonwealth.     (4th   ed.,  revised, 

N.  Y.,  1910.)  —  Contains  a  careful  and  intelligent  study  of  our 

party  machinery  under  the   convention  system  by  a  keen   and 

impartial  observer. 
Channing,  Edward.     Town  and  County  Government  in  the  English 

Colonies  in  North  America.     (Johns  Hopkins  University,  Studies, 

Series  H,  No.  10,  Baltimore,  1884.)  —  Classic  discussion  of  the 

origin  of  New  England  towns. 


Descriptive  Works  xxvii 

Ford,  Henry  Jones.  The  Rise  and  Growth  of  American  Politics: 
A  Sketch  of  Constitutional  Development.  (N.  Y.,  1898.) — A  sug- 
gestive study  of  our  party  system  as  an  outgrowth  of  our  form  of 
government. 

Hart,  Albert  Bushnell.  Actual  Government.  (Rev.  ed.,  N.  Y., 
1908.)  —  An  analyzed  study  of  American  government  as  it  is 
now  in  operation. 

Hart,  Albert  Bushnell.  American  Ideals  Historically  Traced. 
(The  American  Nation,  Vol.  XXVI,  N.  Y.,  1907.)  —A  discussion 
of  the  origin  and  growth  of  the  principal  fields  of  American  gov- 
ernment, each  taken  by  itself. 

LiEBER,  Francis.  Legal  and  Political  Hermeneutics:  or,  Principles 
of  Interpretation  and  Construction  in  Law  and  Politics,  with  Re- 
marks on  Precedents  and  Authorities.  (Enlarged  edition.  Boston, 
1839.)  —  A  suggestive  though  somewhat  discursive  book. 

LiEBER,  Francis.  Civil  Liberty  and  Self-Government.  (3d  ed. 
1880.) — A  popular  treatment  of  the  theory  of  our  government. 

Macy,  Jesse.  Political  Parties  in  the  United  States,  1846- 1 861. 
(N.  Y.,  1900.) 

Merriam,  Charles  Edward.  A  History  of  American  Political 
Theories.     (N.  Y.,  1903.) — Brief  and  authentic. 

MuLFORD,  Elisha.  The  Nation :  the  Foundations  of  Civil  Order  and 
Political  Life  in  the  United  States.  (N.  Y.,  1871.) — A  philosophi- 
cal treatment  of  the  theory  of  national  union  and  sovereignty. 

OsTROGORSKi,  MoiSEi  I.  Democracy  and  Organization  of  Political 
Parties.  (2  vols.,  N.  Y.,  1902.  Translation  by  Frederick  Clarke.) 
—  A  detailed  account  of  the  growth  of  democracy  and  party 
organization  in  England  and  America.  Accurate  as  to  facts  but 
frequently  misleading  as  to  interpretation  of  facts.  Also  a  revised 
edition  in  one  volume.     (N.  Y.,  1910.) 

TocQUEViLLE,  Alexis  de.  Democracy  in  America.  (2  vols.,  Paris, 
1 83 5-1 840.  The  most  available  translation  is  by  Henry  Reeves; 
various  editions.)  —  A  profound  and  suggestive  book,  especially 
on  the  significance  of  town  government. 

Wilson,  Woodrow.  The  State:  Elements  of  Historical  and  Practical 
Politics.  (Rev.  ed.,  Boston,  1900.)  —  Chapter  IX  is  an  excellent 
brief  description  of  the  government  of  the  United  States. 


xxviii  Select  Bibliography 

Wilson,  Woodrow.  Constitutional  Government  in  the  United  States. 
(N.  Y.,  igo8.)  —  Presents  the  salient  features  of  the  national 
government. 

WooDBURN,  James  A.  The  American  Republic  and  its  Government. 
(N.  Y.,  1904.)  —  Principally  a  description  of  our  national  gov- 
ernment. 

IV.  Select  Constitutional  Treatises 

Black,  Henry  Campbell.  Handbook  of  American  Constitutional 
Law.    (2d  ed.,  St.  Paul,  1897.) 

CooLEY,  Thomas  McIntyre.  The  General  Principles  of  Constitu- 
tional Law  in  the  United  States  of  America.  (3d  ed.,  rev.  by  A.  C. 
McLaughlin.     Boston,  1898.) 

CooLEY,  Thomas  McIntyre.  A  Treatise  on  the  Constitutional 
Limitations  which  Rest  upon  the  Legislative  Power  of  the  States  of 
the  American  Union.     (7th  ed.,  Boston,  1903.) 

Hare,  John  Innes  Clark.  American  Constitutional  Law.  (2  vols., 
Boston,  1889.) 

McClain,  Emllnt.  Constitutional  Law  in  the  United  States.  (Ameri- 
can Citizen  Series,  N.  Y.,  2d  ed.,  1910.) 

PoMEROY,  John  Norton.  An  Introduction  to  the  Constitutional  Law 
of  the  United  States.  (loth  ed.,  rev.  by  E.  H.  Bennett.  Boston, 
1888.) 

Story,  Joseph.  Commentaries  on  the  Constitution  of  the  United 
States,  with  a  Preliminary  Review  of  the  Constitutional  History  of  the 
Colonies  and  States  before  the  Adoption  of  the  Constitution.  (2  vols., 
1883;  4th  ed.  by  Cooley,  5th  ed.  by  Bigelow.  Boston,  1873, 
1891.) 

Tucker,  John  Randolph.  The  Constitution  of  the  United  States : 
A  Critical  Discussion  of  its  Genesis,  Development  and  Interpretation. 
(2  vols.,  Chicago,  1899.) 

•  V.  Select  Legal  Treatises 

Beach,  Charles  Fisk,  Jr.  Commentaries  on  the  Law  of  Public  Cor- 
porations.    (2  vols.,  Indianapolis,  1893.) 

Beach,  Charles  Fisk,  Jr.  Commentaries  on  Modern  Equity  Juris- 
prudence.    (N.  Y.,  1892.) 


I 


Election  Machinery  xxix 

Blackstone,  Sir  William.  Commentaries  on  the  Laws  of  England. 
(i 765-1 769;  last  American  ed.  by  Hammond,  1890.) 

Dillon,  John  Forrest.  Commentaries  on  the  Law  of  Municipal 
Corporations.     (2  vols.,  4th  ed.,  1890.) 

Edwards,  George  John.  Grand  Jury  Considered  from  Historical, 
Political  and  Legal  Standpoint.     (Philadelphia,  1906.) 

High,  James  L.  A  Treatise  on  the  Law  of  Injunctions.  (2  vols., 
3d  ed.,  Chicago,  1890.) 

Joyce,  Howard  C.  Treatise  on  the  Law  Relating  to  Injunctions. 
(3  vols.,  Albany,  1909.) 

Mechem,  Floyd  Russell.  Law  of  Public  Offices  and  Officers.  (Chi- 
cago, 1890.) 

Spelling,  Thomas  Carl.  Treatise  on  Injunctions  and  other  Extraor- 
dinary Remedies.     (Boston,  1901.) 

Van  Dyne,  Frederick.  Citizenship  of  the  United  States.  (Rochester 
and  Chicago,  1903.) 

VooRHEES,  Harvey  Cortlandt.  Law  of  Arrest  in  Civil  and  Crimi- 
nal Actions.     (Boston,  1904.) 

VI.  The  Electorate  and  Election  Machinery 

Bishop,  Cortlandt  F.  History  of  Elections  in  the  American  Colonies. 
(N.  Y.,  1893.)  — A  valuable  study  on  Colonial  suffrage  qualifica- 
tions and  election  methods. 

Dallinger,  Frederick  William.  Nominations  for  Elective  Office  in 
the  United  States.  (Harvard  Historical  Studies,  No.  4.,  N.  Y., 
1897.)  — A  careful  study  of  the  rise  and  actual  workings  of  the 
convention  system;  written  before  the  direct  primary  movement 
began. 

Dougherty,  J.  Hampton.  The  Electoral  System  of  the  United  States. 
(N.  Y.,  1906.)  —  A  keen  criticism  of  the  electoral  system  and  a 
proposed  remedy. 

Haynes,  George  H.  The  Election  of  Senators.  (N.  Y.,  1906.)  — 
A  scholarly  and  impartial  discussion  of  a  great  national  problem. 

Macy,  Jesse.  Party  Organization  atid  Machinery.  (American 
State  Series,  rev.  ed.,  N.  Y.,  191 2.)  —  Emphasizes  the  importance 
of  the  national  and  state  committees  in  the  party  system. 


XXX  Select  Bibliography 

McKiNLEY,  Albert  E.  The  Suffrage  Franchise  in  the  Thirteen 
American  Colonies.  (Philadelphia,  1905.) — A  scholarly  and  de- 
tailed account  of  the  suffrage  in  the  Colonies. 

Merriam,  Charles  Edward.  Primary  Elections.  A  Sttidy  of  the 
History  and  Tendencies  of  Primary  Legislation.     (Chicago,  1908.) 

—  A  brief,  clear  and  systematic  account  of  the  practical  workings 
of  our  party  machinery,  especially  direct  primaries. 

Meyer,  Ernst  Christopher.  Nominating  Systems:  Direct  Pri- 
maries versus  Conventions  in  the  United  States.     (Madison,  1902.) 

—  An  able  but  partisan  presentation  of  the  defects  of  the  con- 
vention system  and  the  merits  of  the  direct  primary, 

Stanton,  Elizabeth  Cady,  and  others.  History  of  Woman  Suffrage. 
(4  vols.,  N.  Y.,  1887  to  1902.) 

Stanwood,  Edward.  History  of  the  Presidency.  (Rev.  ed.,  N.  Y., 
1912.) 

Sumner,  Helen.  Equal  Suffrage.  (N.  Y.,  1909.)  —  A  dispassionate 
and  scholarly  account  of  the  results  of  woman  suffrage  in  Colorado. 

Wigmore,  John  Henry.  The  Australian  Ballot  System  as  Embodied 
in  the  Legislation  of  Various  Countries.     (Boston,  1899.) 

VII.  Direct  Participation  of  the  Electorate  in  Acts  of  Government 

Beard,  Charles  Austin,  and  Shultz,  Birl  E.  Documents  on  the 
State-wide  Initiative,  Referendum  and  Recall.  (N.  Y.,  191 2.)  — 
The  Introduction  to  these  documents  presents  a  critical  analysis 
of  the  limitations  of  direct  legislation  and  recall  of  ofl&cers  under 
our  present  system  of  government. 

BoRGEAUD,  Charles.  Adoption  and  Amendment  of  Constitutions  in 
Europe  and  America.  (Paris,  1893.  Translated  by  C.  D.  Hazen, 
N.  Y.,  1905.)  —  A  brief  comparative  study  of  the  functions  of 
constitution  making. 

Deploige,  SmoN.  The  Referendum  in  Switzerland.  (Translated  by 
C.  P.  Trevelyan,  N.  Y.,  1898.)  — Written  by  an  able  jurist  as  an 
argument  against  the  adoption  of  direct  legislation  in  Belgium. 

DoDD,  Walter  Fairleigh.  The  Revision  and  Amendment  of  State 
Constitutions.  (Baltimore,  1910.)  —  A  sane  and  conservative 
account  with  emphasis  on  present  tendencies. 

Jameson,  John  Alexander.  The  Constitutional  Conventions :  Their 
History,  Powers,  and  Mode  of  Procedure.     (4th  ed.,  Chicago,  1887.) 


Popular  Government  xxxi 

—  Reservoir  of  facts  and  precedents;   but  pushes  a  legal  theory 
on  the  limitations  of  the  powers  of  constitutional  conventions. 

LoBiNGiER,  Charles  Sumner.  The  People's  Law:  Or  Popular 
Participation  in  Law  Making  from  the  Ancestral  Folkmoot  to  Mod- 
ern Referendum.  (N.  Y.,  1909.)  —  Contains  very  full,  valuable 
material. 

Lowell,  A,  Lawrence.  Public  Opinion  and  Popular  Government. 
(N.  Y.,  1913.)  Includes  lists  of  Swiss  and  American  legislative 
referenda. 

MUNRO,  WiLLLVM  Bennett,  editor.  The  Initiative,  Referendum  and 
Recall.  (N.  Y.,  191 2.)  —  Contains  papers  and  addresses  for  and 
against  direct  legislation  and  the  recall,  together  with  a  critical 
Introduction  by  the  editor. 

Oberholtzer,  Edward  Paxson.  The  Referendum  in  America, 
together  with  some  Chapters  on  the  Initiative  and  Recall.  (N.  Y., 
191 1.)  —  The  original  edition  (N.  Y.,  1900)  is  a  scholarly  and 
conservative  account  of  the  referendum  in  America.  The  addi- 
tional chapters  of  the  new  edition  (191 1)  are  extremely  partisan. 

Ransom,  Willla.m  L.  Majority  Rule  and  the  Judiciary:  An  Exami- 
nation of  the  Current  Proposals  for  Constitutional  Change  Affecting 
the  Relation  of  the  Courts  to  Legislation.  (N.  Y.,  191 2.)  — A  brief 
account  of  the  recent  proposals  for  mandatory  referendum  on 
court  decisions  declaring  laws  unconstitutional. 

Wilcox,  Delos  F.  Government  by  All  the  People:  Or  the  Initiative, 
the  Referendum  and  Recall  as  Instruments  of  Democracy.  (N.  Y., 
191 2.)  —  Deals  with  the  defects  of  the  present  system  of  legisla- 
tion and  the  fundamental  principles  involved  in  direct  legislation. 

King,  Clyde  L.,  editor.  Initiative,  Referendum  and  Recall.  (Ameri- 
can Academy  of  Political  and  Social  Science,  Annals,  XLIII,  No, 
132.  Philadelphia,  1912.)  — A  valuable  collection  of  papers  and 
addresses  on  direct  legislation  and  recall. 

Vni.   General  Problems  of  Popular  Government 

Baldwin,  Simeon  E.     The  American  Judiciary.    (American  State 

Series,  N.  Y.,  1905.)  —  A  general  survey  for  the  beginning  student. 
Bradford,  Ernest.     Commission  Government  in  American  Cities. 

(N.  Y.,  191 1.)  —  Strong  on  the  spread  of  Commission  government; 

weak  in  treatment  of  merits  and  defects  of  new  form  of  municipal 

government. 


xxxii  Select  Bibliography 

Bradford,  Gamaliel.  The  Lessons  of  Popular  Government.  (2 
vols.,  N.  Y.,  1899.)  —  Plea  for  English  system  of  parliamentary 
responsibility. 

Fairlie,  John  Archibald.  Municipal  Administration.  (N.  Y., 
1901.)  —  The  National  Administration.  (N.  Y.,  1905.)  — Local  Gov- 
ernment in  Counties,  Towns  and  Villages.  (American  State  Series. 
N.  Y.,  1906.)  —  Valuable  studies  in  administrative  problems. 

FiNLEY,  John  Huston,  and  Sanderson,  John  Franklin.  The 
American  Executive  and  Executive  Methods.  (American  State 
Series,  N.  Y.,  1908.)  —  Presents  the  actual  workings  of  American 
executive  departments. 

Fish,  Carl  Russell.  The  Civil  Service  and  the  Patronage.  (Har- 
vard Historical  Studies,  No.  11,  N.  Y.,  1905.)  — A  thorough  and 
complete  account  of  the  history  of  the  federal  civil  service. 

GooDNOW,  Frank  Johnson.  Politics  and  Administration:  A  Study 
in  Government.  (N.  Y.,  1900.)  — Municipal  Home  Rule:  A  Study 
in  Administration.  (N.  Y.,  1895.)  —  Municipal  Problems.  (N.  Y., 
1897.)  —  Valuable  studies  by  one  of  the  ablest  American  pub- 
licists. 

Hughes,  Charles  Evan.  Conditions  of  Progress  in  Democratic 
Government.  (New  Haven,  1910.)  —  A  keen  analysis  of  the  defects 
in  state  administration  based  upon  experience. 

McCoNACHiE,  Lauros  G.  Congressional  Committees :  A  Study  of 
the  Origins  and  Development  of  our  National  and  Local  Legislative 
Methods.  (N.  Y.,  1898.)  —  A  detailed  study  of  the  control  of  the 
congressional  committees  over  legislation. 

MuNRO,  William  Bennett.  Municipal  Government  in  the  United 
States.     (N.  Y.,  191 2.) 

Reinsch,  Paul  S.  American  Legislatures  and  Legislative  Methods. 
(American  State  Series.  N.  Y.,  1907.)  —  A  masterly  presentation 
of  legislative  methods,  especially  the  workings  of  state  legislatures. 

Roosevelt,  Theodore.  Essays  on  Practical  Politics.  (N.  Y., 
1888.) — American  Ideals  and  other  Essays,  Social  and  Political. 
(N.  Y.,  1897.)  —  The  Strenuous  Life:  Essays  and  Addresses. 
(N.  Y.,  1900.)  —  Excellent  inside  surveys  of  state  and  local  politics. 

Shaw,  Albert.  Political  Problems  of  American  Development. 
(N.  Y.,  1907.)  —  Thoughtful  discussions  and  optimistic  in 
tone. 


American  Government  xxxiii 

Stickney,  Albert.  A  True  Republic.  (N.  Y.,  1879.)  —  Democratic 
Government:  A  Study  of  Politics.  (N.  Y.,  1885.)  —  The  Political 
Problems.  (N.Y.,1890.)  —  Valuable  books  dealing  with  defects 
and   remedies   in  our  government. 

Wilson,  Woodrow.  Congressional  Government:  A  Study  in  Ameri- 
can Politics.  (1885,  7th  ed.,  Boston,  1907?)  —  A  suggestive 
study  of  Congress  at  work. 

IX.  Source  Material  on  American  Government 
Collections 

Beaio),  Charles  Austin,  editor.  Readings  in  American  Government 
and  Politics.  (N.  Y.,  1909.)  —  A  valuable  collection  of  readings 
chiefly  from  sources. 

Beard,  Charles  Austin,  and  Shultz,  Birl  E.,  editors.  Documents 
on  the  State-wide  Initiative,  Referendum  and  Recall.  (N.  Y.,  191 2.) 
—  A  handy  collection  of  amendments  to  state  constitutions  on 
direct  legislation  and  recall. 

Boyd,  Carl  Evans,  editor.     Cases  on  American  Constitutional  Law. 

(Chicago,  1898.)  —  Practically  an  abridgment  of  Thayer. 
Bullock,  Charles  J.    Selected  Readings  in   Econotnics.     (Boston, 

etc.,  1907.)  —  Much  good  material  on  the  relation  of  individuals 

to  government. 

Callender,  Guy  S.  Selections  from  the  Economic  History  of  the 
United  States:  iy6j-i86o.  (Boston,  etc.,  1909.)  —  Entirely  made 
up  of  extracts,  nearly  all  from  first  hand  material. 

Hart,  Albert  Bushnell,  editor.  American  History  Told  by  Con- 
temporaries. (4  vols.,  N.  Y.,  1897-1901.)  —  Many  actual  illustra- 
tions of  the  workings  of  democracy. 

Hill,  Mabel,  editor.  Liberty  Documents :  with  Contemporary 
Exposition  and  Critical  Comments  drawn  from  Various  Sources. 
(N.  Y.,  1901.)  —  A  serviceable  collection  of  English  and  American 
personal  liberty  documents. 

Johnson,  Allen,  editor.  Readings  in  American  Constitutional 
History,  1776-1806.  (Boston,  etc.,  1907.)  —  Intended  primarily 
for  undergraduates. 

Jones,  Chester  Lloyd,  editor.  Readings  on  Parties  and  Elections 
in  the  United  States.  (N.  Y.,  191 2.)  —  Well  arranged  readings 
from  sources  and  secondary  writers. 


xxxiv  Select  Bibliography 

Kaye,  Percy  Lewis,  editor.  Readings  in  Civil  Government.  (N.  Y., 
igio.)  —  Selections  chiefly  from  secondary  works. 

McClain,  Emlin,  editor.  A  Selection  of  Cases  on  Constitutional  Law. 
(Boston,  I  goo.)  —  A  handy  single  volume  of  well  selected  cases. 

McDonald,  William,  editor.  Select  Charters  and  other  Documents 
Illustrative  of  American  History,  idod-ijys.  (N.  Y.,  1904.) 
—  Select  Documents  Illustrative  of  the  History  of  the  United  States, 
i'/76-i86i.  (N.  Y.,  1898.) — Select  Statutes  and  other  Documents 
Illustrative  of  the  History  of  the  United  States,  i86i-i8g8.  (N.  Y., 
1903.)  —  A  careful  collection  of  foundation  documents:  condensed 
by  the  same  author  into  one  volume,  entitled,  Documentary  Source 
Book  of  American  History,  i6o6-i8g8.     (N.  Y.,  1908.) 

PoORE,  Ben.  Perley,  compiler.  The  Federal  and  State  Constitutions, 
Colonial  Charters  and  other  Organic  Laws  of  the  United  States. 
(Senate  Misc.  Docs.,  44  Cong.,  2  Sess.  [serial  numbers,  1730,  1731], 
also  separately;   2  parts,  Washington,  1877.) 

Reinsch,  Paul  S.,  editor.  Readings  in  American  State  Government. 
(Boston,  1 911.) — Readings  on  American  Federal  Government. 
(Boston,  1909.)  —  Selections  chiefly  from  sources,  admirably 
chosen. 

Smith,  Jeremiah,  editor.  Cases  on  Selected  Topics  on  the  Law  of 
Municipal  Corporations.     (Cambridge,  Mass.,  1898.) 

Thayer,  James  Bradley,  editor.  Cases  on  Constitutional  Law: 
with  Notes.  (2  vols.,  Cambridge,  Mass.,  1895.) — Standard 
collection  of  constitutional  cases,  up  to  its  date. 

Thorpe,  Francis  Newton,  compUer.  Federal  and  State  Consti- 
tutions, Colonial  Charters  and  other  Organic  Laws  of  States,  Terri- 
tories and  Colonies.  (House  Docs.,  59  Cong.,  2  Sess.,  No.  357, 
7  vols.,  Washington,  1909.)  —  Poorly  arranged  but  the  most  com- 
plete recent  set. 

Statutes 

All  of  the  states  publish  their  statutes  at  the  close  of  each  legislative 
session,  and  at  irregular  intervals  Revised  or  Consolidated  Statutes 
including  the  laws  then  in  force. 

The  Statutes  of  the  federal  government  appear  as  follows: 

Laws  of  the  United  States  of  America,  1780-1849.  (29  vols.,  Phila- 
delphia and  Washington,  1 796-1849.) 


Periodical  Material  xxxv 

Statutes  at  Large  of  the  United  States  of  America,  lySg-.     (36  vols. 

up  to  191 1.     Boston  and  Washington,  1850-.) 
Revised   Statutes    of  the    United  States  .  .  .  e^nhracing   the  Statutes 

.  .  .  general  and  permanent  in  their  nature,  in  force  on  Dec.  ist, 

1873.     (Washington,  1875.) — Also  a  second  edition  with  slight 

corrections,  Washington,  1878. 
Supplement  to  the  Revised  Statutes  of  the  United  States,  embracing  the 

Statutes,  general  and  permanent  in  their  nature,  passed  after   the 

Revised  Statutes,  1874-igoi.     (2  vols.,  Washington,   1891,   1900- 

1901.) 
Compiled  Statutes  of  the  United  States,  igoi-igo/.     (6  vols.,  St.  Paul, 

1902,  1903,  1905,  1907.) 

X.  Periodical  Material  on  Popular  Government 

American  Annual  Cyclopaedia,  1861-1875.  (15  vols.,  N.  Y.,  1862- 
1875.) — After  1875  called  Appleton's  Annual  Cyclopaedia. 

American  f'ear  Book.     (3  vols,  to  191 2.    N.  Y.,  1911-.) 

American  Historical  Review.     (18  vols.,  N.  Y.,  1895-1912.) 

American  Law  Review.     (46  vols.,  Boston  and  St.  Louis,  1866-1912.) 

American  Political  Science  Review.     (6  vols.,  Baltimore,  1906-1912.) 

American  Political  Science  Association,  Proceedings.  (9  vols., 
Baltimore,  1904-1912.) 

American  Review  of  Reviews.     (46  vols.,  N.  Y.,  1890-1912.) 

American  Academy  of  Political  and  Social  Science,  Annals.  (44 
vols.,  Philadelphia,  1890-1912.) 

Arena.  (41  vols.,  Trenton  and  Boston,  1890-1909.)  — Now  merged 
into  Christian  Work. 

Appleton's  Annual  Cyclopaedia  and  Register  of  Important  Events. 
(27  vols.,  N.  Y.,  1876-1902.)  — Till  1875  called  American  Annual 
Cyclopaedia. 

Atlantic  Monthly,     (no  vols.,  Boston,  1857-1912.) 

Chatauquan.     (67  vols.,  Meadville,  Pa.,  and  Cleveland,  18S0-1912.) 

Civil  Service  Record.  (11  vols.,  Boston,  1881-1892.) — Now  called 
Good  Government. 

Current  History  and  Modern  Culture.  (12  vols.,  Detroit,  Buflfalo, 
Boston  and  New  York,  1891-1903.)  —  Formerly  Quarterly  Register 
of  Current  History  and  Cyclopaedic  Review  of  Current  History. 


xxxvi  Select  Bibliography 

Equity:  Including  the  Direct  Legislative  Record,  the  Referendum  News 
and  the  Proportional  Representation  Review.  (14  vols.,  Philadelphia, 
1 898-1 9 1 2.) 

Good  Government.  (18  vols.,  Boston,  Washington  and  New  York, 
1892-1912.) 

Greenhag.     (24  vols.,  Boston,  1889-1912.) 

Harvard  Law  Review.     (26  vols.,  Cambridge,  Mass.,  1877-1912.) 

Independent.     (73  vols.,  N.  Y.,  1848-1912.) 

Municipal  Affairs.     (6  vols.,  N.  Y.,  1897-1902.) 

Nation.     (96  vols.,  N.  Y.,  1865-1912.) 

National  Municipal  Review.     (2  vols.,  Philadelphia,  1912-1913.) 

Outlook.  (S5  vols.,  N.  Y.,  1893-191 2.)  —  Founded  in  1867  as  the 
Church  Union,  later  the  Christian  Union,  changed  to  the  Outlook, 
July  I,  1893. 

Political  Science  Quarterly.     (27  vols.,  Boston,  1886-1912.) 

Statesman's  Year  Book.     (49  vols.,  London,  1872-1912.) 

Yale  Review.     (22  vols.,  New  Haven,  1892-1912.) 

Yale  Law  Journal.    (22  vols.,  New  Haven,  1890-1912,) 


Organized   Democracy 


"  If  any  one  ask  me  what  a  free  government  is,  I  reply,  it  is  what  the 
people  think  so." 

EDMUND  BURKE. 

"  The  thing  that  governs  us  is  public  opinion  — not  the  nominal  public 
opinion  of  creed  or  statute  book,  but  the  real  public  opinion  of  living  men 
and  women." 

"Liberty  is  essential  to  progress,  democracy  is  needed  to  prevent 
revolution,  constitutional  government  is  requisite  for  that  continuity  and 
orderliness  of  living  without  which  no  worthy  life  is  possible.  .  .  . 

"Democracy  is  right  when  it  is  used  as  a  means  of  keeping  the  gov- 
ernment in  touch  with  public  opinion;  it  is  wrong  when  it  encourages  a 
temporary  majority  to  say  that  their  vote,  based  on  insufficient  informa- 
tion or  animated  by  selfish  motives,  can  be  identified  with  public  opinion 
concerning  what  is  best  for  society  as  a  whole. 

"  Constitutional  safeguards  are  absolutely  necessary  to  make  any  meas- 
ure of  liberty  or  democracy  possible;  but  when  they  are  used  to  protect  the 
liberties  of  a  class  bent  on  its  own  interest  rather  than  on  the  general 
interest  of  society,  they  cease  to  be  a  safeguard  and  become  a  source  of 
peril." 

ARTHUR  TWINING  HADLEY. 

"  A  constitutional  government  is  one  whose  powers  have  been  adapted 
to  the  interests  of  its  people  and  to  the  maintenance  of  individual 
liberty.  .  .  . 

"  Roughly  speaking,  constitutional  government  may  be  said  to  have  had 
its  rise  at  Runnymede.  .  .  . 

"  The  barons  met  at  Runnymede.  .  .  .  They  were  not  demanding 
new  laws  or  better,  but  a  righteous  and  consistent  administration  of  laws 
they  regarded  as  already  established,  their  immemorial  birthright  as  Eng- 
lishmen .  .  .;  and  their  proposal  was  this:  '  Give  us  your  solemn  prom- 
ise as  monarch  that  this  document  shall  be  your  guide  and  rule  in  all 
your  dealings  with  us,  attest  that  promise  by  your  sign  manual  attached 
in  solemn  form,  admit  certain  of  our  number  a  committee  to  observe  the 
keeping  of  the  covenant  and  we  are  your  subjects  in  all  peaceful  form 
and  obedience  —  refuse,  and  we  are  your  enemies,  absolved  of  our  alle- 
giance .  .  .'  Swords  made  uneasy  stir  in  their  scabbards,  and  John 
had  no  choice  but  to  sign." 

WOODROW  WILSON. 


Organized   Democracy 

Part  I 

The  Foundations  of  the  American  Republic 


CHAPTER  I 
CONFLICT  BETWEEN  ABSOLUTISM  AND  SELF-GOVERNMENT 

1.  References 

Bibliography:  W.  I.  Thomas,  Source  Book  for  Social  Origins  (igog), 
859-915;  Charles  Gross,  Bibliography  of  British  Municipal  History,  including 
Gilds  and  Parliamentary  Representation  (1897);  A.  Luchaire,  Manuel  des 
Institutions  Franqaises  (1892),  footnotes  to  parts  ii,  iii,  and  iv. 

Origin  of  Political  Institutions:  B.  H.  Baden-Powell,  Indian  Vil- 
lage Community  (1896);  F.  H.  Giddings,  Principles  of  Sociology  (1896), 
bk.  ii,  ch.  iv;  H.  S.  Maine,  Village  Community  in  the  East  (1895);  H.  S. 
Maine,  Early  Law  and  Custom  (1883),  ch.  vii;  Herbert  Spencer,  The  Prin- 
ciples of  Sociology  (1882),  II,  §440;  W.  G.  Sumner,  What  Social  Classes 
Owe  to  Each  Other  (1883);  W.  I.  Thomas,  Source  Book  for  Social  Origins 
(1909),  part  vii;   Lester  Ward,  Dynamic  Sociology  (1910). 

Asiatic  and  European  Despotism:  W.  Cunningham,  Western  Civil- 
ization, Ancient  Times  (1898),  bk.  i,  ch.  ii;  W.  Cunningham,  Modern  Times 
(1900),  bk.  iv,  ch.  i;  G.  W.  F.  Hegel,  Philosophy  of  History  (Bohn's  ed.), 
117  et  seq.;  T.  E.  May,  Democracy  in  Europe  (1877),  vol.  i;  W.  W. 
Willoughby,  Political  Theories  of  the  Amienl  World  (1907),  ch.  ii. 

Feudalism:  A.  Luchaire,  Manuel  des  Institutions  Franqaises  (1892), 
Seconde  Partie;  Ch.  Seignobos,  Le  regime  feodal  en  Boiirgogne  (1883);  E. 
Emerton,  Mediaeval  History  (1894),  ch.  xiv;  G.  B.  Adams,  Civilization 
(1894),  ch.  ix. 

Mediaeval  Towns  and  Self-Government:  W.  Cunningham,  West- 
ern Civilization  (1900),  II;  W.  Cunningham,  Growth  of  English  Industry 
and  Commerce  (1902);  E.  P.  Cheyney,  Industrial  and  Social  History  of 
England  (1901),  chs.  ii  and  iii;  A.  S.  Green,  Town  Life  (1907);  C.  Gross, 
The  Gild  Merchant  (1890);  F.  W.  Maitland,  Township  and  Borough  (1898) 
G.  L.   Maurer,   Gcschichte  dcr  Stadtverfassung  in  Deutschland   (1869-71) 

A.  Luchaire,  Manuel  des  Institutions  Franqaises  (1892),  Troisieme  Partie 

B.  C.  Skottowe,  Short  History  of  Parliament  (1886);  H.  Taylor,  Origin  and 
Growth  of  the  English  Constitution  (1889),  I,  bks.  ii  and  iii;   A,  Bisset, 


4  Absolutism  and  Self-Government        [§  2 

Short  History  of  English  Parliament  (2  vols.,  1877),  chs.  ii,  iii;  W.  J.  Ashley, 
Introduction  to  English  Economic  History  and  Theory  (1892),  I,  bk.  i,  ch. 
ii;   E.  A.  Freeman,  Growth  of  English  Constitution  (1873),  ch.  ii. 

2.  The  Law  of  Survival 

The  evolutionary  forces  which  have  dominated  political 
organization  and  conflict  are  found  in  man  —  man  controlled 
by  physical  wants,  moved  by  strong  desires  which  he  would 
satisfy.  These  wants  and  desires  are  the  mainsprings  of  action; 
their  satisfaction  is  the  end  toward  which  all  conscious  human 
effort  is  directed.  But  in  directing  effort  toward  the  satisfac- 
tion of  desire  an  important  qualification  appears:  man  would 
attain  his  ends  at  the  least  possible  cost  to  himself.  Out  of 
the  unceasing  struggle  for  existence,  by  processes  of  human 
selection  and  invention  operating  under  "the  law  of  advan- 
tage" or  greatest  economy,  all  social  and  poHtical  institutions 
have  grown. 

There  are  those  who  account  even  for  the  existence  of  the 
family  by  the  "law  of  advantage."  Lester  F.  Ward  reasons 
that  in  human  nature  there  are  as  many  elements  which  would 
tend  to  drive  men  apart  and  cause  them  to  destroy  each  other 
as  there  are  tending  to  bring  them  together.  As  interpreted 
by  him  the  "social  instinct"  is  the  result  of  the  greater  advan- 
tage which  comes  from  co-operation;  the  increased  facility 
with  which  the  conditions  of  Ufe  are  met  is  said  to  be  the  evolu- 
tionary principle  which  Ues  back  of  the  family  as  well  as  the 
larger  social  organisms.^  This  same  general  view  is  expressed 
by  Herbert  Spencer  as  follows:  "So  long  as  members  of  the 
group  do  not  combine  their  energies  to  achieve  some  common 
end  or  ends,  there  is  little  to  keep  them  together.  They  are 
prevented  from  separating  only  when  the  wants  of  each  are 
better  satisfied  by. uniting  his  efforts  with  those  of  others  than 
they  would  be  if  he  acted  alone:  Co-operation,  then,  is  at 
once  that  which  cannot  exist  without  society  and  that  for  which 
a  society  exists."  ^ 

^  Ward,  Lester  F.,  Dynamic  Sociology,  vol.  i,  p.  390. 
2  Spencer,  Herbert,  Sociology,  vol.  ii,  p.  243. 


§3]  Industry  and  Self-Government  5 

Whether  associating  in  pohtical  groups  called  states,  estab- 
lishing governing  agencies,  founding  ruling  families  and  royal 
courts,  creating  parliaments,  judiciaries,  coimcils,  cabinets, 
and  other  legislative,  judicial,  advisory,  and  administrative 
departments  —  whether  dividing  on  questions  of  policy  into 
pohtical  factions  and  parties  or  engaged  in  planning  for  of- 
fensive and  defensive  warfare,  each  pubhc  undertaking,  miU- 
tary  or  civil,  if  traced  to  its  origin  and  analyzed  as  to  motive, 
will  be  found  to  be  based  on  the  economic  principle  known  to 
science  as  "the  law  of  advantage."  Operating  under  this 
principle  or  law,  those  institutions  which  have  left  their  mark 
on  the  pages  of  history,  whether  now  extinct  or  still  remain- 
ing, are  to  be  viewed  as  evolutionary  products  and  treated  as 
survivals.  Any  attempt  to  study  government  historically 
without  taking  this  motive  into  account  would  be  Httle  less 
than  futile.  Nor  can  we  regard  the  evolution  of  popular  co- 
operation in  government  in  the  United  States  as  a  separate 
movement  —  it  is  only  a  small  part  of  a  general  process,  a 
single  link  in  a  long  chain  of  pohtical  events.^ 

3.  Industry  and  Self-Govemment 

Taking  this  general  view  of  the  evolution  of  government, 
we  find  at  the  very  inception  two  essentially  different  principles 
of  organization.  On  the  one  hand  may  be  found  such  institu- 
tions as  the  village  community  of  India  and  the  East,  the  agri- 
cultural and  pastoral  society  of  Western  Asia  and  Africa,  the 
township  of  the  Teuton  and  the  West,  and  among  them  ex- 
amples of  local  self-government  as  complete  and  effective  as 
those  which  are  retained  and  jealously  guarded  by  us  to-day. 
As  far  back  as  history  carries  us,  in  India,  in  Russia,  in  Africa, 
in  Germany,  and  in  England  there  is  evidence  of  organized 
communities  holding  their  lands  or  other  property  in  common 
as  a  brotherhood,  dividing  the  occupation  and  the  products 
of  the  soil  by  established  law  and  custom,  carrying  on  their 
industry  and  managing  their  affairs  in  an  orderly  fashion  by 
^  See  Robinson,  James  H.,  The  New  History. 


6  Absolutism  and  Self-Government         [§  3 

means  of  a  popular  assembly,  a  town  council,  or  representative 
head.  The  economic  basis  of  this  form  of  organization  was 
industry  —  the  cultivation  of  the  soil,  the  tending  of  flocks  and 
herds.  The  interests  of  such  a  community  demanded  orderly 
co-operation  and  equitable  divisions  of  products.  The  poUtical 
system  or  organization  evolved  was  the  social  expression  of 
those  community  interests. 

The  birthplace  of  the  human  family,  it  is  thought,  was  one 
in  which  practically  no  toil  was  required  —  in  some  tropical 
or  semi-tropical  portion  of  the  earth  where  conditions  for  life 
without  toil  were  favorable.  Having  no  shelter  and  no  imple- 
ments, possessing  a  low  order  of  intelligence,  the  early  human 
race  could  not  survive  a  rigorous  climate.  Under  such  condi- 
tions it  must  have  been  much  easier  for  these  individuals  living 
in  tropical  and  highly  productive  regions  to  pick  dates,  cocoa- 
nuts,  etc.,  than  for  them  to  pursue  the  chase  or  organize  them- 
selves into  bands  to  fight  for  the  goods  which  had  been  obtained 
by  others.  But  as  population  increased,  numbers  must  have 
crowded  on  nature's  food  supply  in  the  more  highly  produc- 
tive regions.  As  a  result  the  advantages  of  cultivation  were 
discovered,  implements  were  invented,  and  the  less  productive 
areas  were  gradually  brought  within  the  range  of  habitation. 
Thus  it  is  thought,  by  slow  process  of  adaptation,  those  places 
where  the  soil  was  well  suited  to  a  yield  of  fruit  and  grain  were 
devoted  to  cultivation,  those  regions  where  the  soil  was  not 
readily  responsive  to  agricultural  labor,  but  which  supported 
numbers  of  grazing  animals,  were  occupied  by  a  pastoral  group, 
and  those  regions  in  which  neither  of  these  conditions  prevailed, 
which  were  rough  and  wooded  and  frequented  by  wild  birds  and 
animals,  were  peopled  by  men  who  Uved  by  the  chase. 

And  no  other  assumption  can  be  reasonably  employed  than 
this:  that  in  all  forms  of  pursuit  men  sought  to  obtain  the 
means  of  satisfying  physical  want  and  desire  at  the  least  possible 
expenditure  of  energy.  This  theory  not  only  accounts  for  early 
differentiation  in  the  forms  of  activity,  but  also  for  the  many 
individual  and  social  conflicts.     In  some  tribes  the  people  are 


§  4]  Predatory  Motive  7 

known  to  have  followed  a  variety  of  employments,  as,  for 
example,  the  ancient  Teutons  or  some  of  the  North  American 
Indians.  It  very  often  happened  among  these  people  that  the 
women  and  children  would  attend  to  simple  agricultural  pur- 
suits and  watch  the  herd,  while  the  men  pursued  the  chase. 
It  is  thought  that  it  was  through  this  form  of  industrial  co- 
operation that  the  war  organization  was  worked  out.  The 
men  hunting  in  bands  would  come  in  conflict  with  hunters 
from  other  tribes;  or  coming  upon  a  settlement  possessed  of 
things  desired  by  them,  all  of  the  men  of  the  one  tribe  would 
organize  a  band  for  conquest,  and  the  people  of  another  tribe 
together  with  their  goods  would  come  to  be  regarded  as  a 
higher  form  of  chase  than  the  animals  of  the  forest. 

4.  The  Predatory  Motive  in  Govemment 

Thus  side  by  side  with  popular  co-operation  for  industrial 
welfare  went  another  equally  significant  factor  in  political 
evolution.  Associated  with  the  principle  of  self-government 
is  found  the  principle  of  sovereignty  —  its  history  one  of  con- 
quest. Animated  by  the  same  desire  to  satisfy  their  wants, 
the  hill-tribes  organized  their  forces  and  sallied  forth  into  the 
fertile  plains,  despoiUng  the  agricultural  communities,  killing 
the  people  or  making  them  slaves.  Examples  of  conquest  of 
the  locally  organized  industrial  groups  are  many.  Whether 
in  Asia,  in  Africa,  in  Europe,  the  result  has  been  the  same. 
After  conquest  both  conqueror  and  conquered,  master  and 
slave,  have  lived  in  one  society;  and  in  each  such  case  new  social 
and  political  institutions  have  been  developed  the  dominant 
principle  of  which  has  been  conquest.  Co-operative  industry 
was  made  the  servant  of  predation. 

The  purpose  of  industrial  organization  has  been  to  gain 
mastery  over  nature  and  to  make  it  subservient  to  the  wants 
of  man:  invention,  industrial  education,  the  arts,  association, 
and  co-operation  all  have  been  directed  toward  this  end.  The 
purpose  or  economic  principle  underlying  the  predatory  organ- 
ization has  been  to  gain  a  mastery  over  man  —  man  as  an 


8  Absolutism  and  Self-Government         [§  4 

industrial  agent  —  to  the  end  that  the  desires  of  the  conqueror 
might  be  satisfied  out  of  the  labor  and  skill  of  the  conquered. 
As  Sumner  puts  it:  ''The  history  of  the  human  race  is  one  long 
story  of  attempts  by  certain  persons  and  classes  to  obtain 
control  of  the  power  of  the  state  so  as  to  win  earthly  gratifica- 
tions at  the  expense  of  others.  .  .  .  Capital,  which,  as  we  have 
seen,  is  the  condition  of  all  welfare  on  earth,  the  fortification  of 
existence  and  the  means  of  growth,  is  an  object  of  cupidity. 
Some  want  to  get  it  without  paying  the  price  of  industry  and 
economy.  In  ancient  times  they  made  use  of  force.  They 
organized  bands  of  robbers.  They  plundered  laborers  and 
merchants.  Chief  of  all,  however,  they  found  that  means  of 
robbery  which  consisted  in  gaining  control  of  the  civil  organiza- 
tion —  the  state  —  and  using  its  poetry  and  romance  as  a 
glamour  under  cover  of  which  they  made  robbery  lawful. 
They  developed  high-spun  theories  of  nationahty,  patriotism, 
and  loyalty.  They  took  all  the  rank,  glory,  power,  and  pres- 
tige of  the  great  civil  organization  and  they  took  all  the  rights. 
They  threw  on  others  the  burdens  and  duties."  ^ 

The  polity  established  ty  local  industrial  organization  has 
been  that  of  local  self-government.  Organized  for  the  purpose 
of  estabHshing  an  order  of  things  most  advantageous  to  the 
various  members  of  the  community  in  the  exercise  of  their 
productive  energies,  its  primary  aim  has  been  harmony,  co- 
operation, common  weal.  To  them  and  their  purpose  orderly 
and  equitable  co-operation  was  most  advantageous;  the  politi- 
cal organization  was  democratic  or  representative  and,  there- 
fore, responsive  to  the  public  will.  On  the  other  hand,  the 
polity  established  by  predation  has  been  one  of  military  rule, 
monarchy,  absolutism;  its  aim  has  been  the  development  of 
the  greatest  amount  of  fighting  force,  as  a  means  of  overcoming 
others  and  obtaining  the  product  of  their  industry;  it  has 
assumed  for  the  conqueror  superiority,  nobility,  deification, 
sovereignty;   it  has  assumed  for  the  sovereign  a  primary  right 

1  Sumner,  W.  G.,  What  Social  Classes  Owe  to  Each  Other,  p.  loi.  See 
also  Cooley,  Constitutional  Law,  ch.  x,  sec.  295. 


§  4]  Predatory  Motive  9 

to  the  soil  and  absolute  power  over  his  subjects;  it  has  reared 
the  fiction  of  the  divine  right  of  kings,  nobility,  hereditary 
succession,  feudal  tenure,  primogeniture,  monopoly,  slavery. 

Between  these  two  forms  of  organization  there  has  been  a 
world-wide,  age-long  conflict.  The  one  has  had  for  its  prime 
purpose  obtaining  satisfaction  through  industry,  the  other 
through  conquest  or  spoliation;  the  one  group  has  sought  to 
establish  a  polity  in  aid  of  production,  the  other  to  build  up  a 
polity  in  aid  of  predation  and  as  a  guaranty  of  spoils. 

Frequently  we  find  different  individuals  and  different  com- 
munities organized  and  acting  according  to  the  one  principle 
at  one  time  and  the  other  principle  at  another.  There  are 
also  many  examples  of  peoples  who,  acting  as  an  industrial 
community,  engaged  in  co-operative  production  during  a  part 
of  the  year  (the  summer)  and  as  a  predatory  community  dur- 
ing the  other  part  (the  winter).  In  such  cases  the  form  of 
organization  employed  for  the  productive  activities  was  usually 
different  from  that  employed  for  the  predatory  activities. 
After  the  conquest  of  a  people  the  form  of  organization  was 
usually  changed  in  such  a  manner  as  to  subordinate  the  captured 
to  the  captors  to  be  utilized  as  slaves  or  dependents  in  industrial 
employment.  In  such  cases  industrial  processes  have  been 
conducted  under  a  predatory  regime  and  by  force  instead  of 
by  agreement  and  consent:  the  military  forces  control  the 
government.  Even  after  the  principles  of  sovereignty  and 
self-government  have  been  harmonized  in  political  organiza- 
tion the  conflict  has  gone  on.  It  may  happen  that  the  same 
individual,  at  different  times  or  at  the  same  time  in  different 
relations,  may  act  a  part  in  both  of  these  forms  of  organization. 
In  his  dealings  of  one  kind  he  may  have  for  his  purpose  co-opera- 
tive production  or  other  general  welfare  ends,  and  in  his  deal- 
ings of  another  kind  he  may  co-operate  with  an  organization 
purely  predatory,  having  for  its  object  spoils.  The  vikings 
furnish  a  striking  example  of  this  kind.  Many  similar  modern 
examples  might  be  cited :  some  of  these  are  found  in  organizations 
created  to  subvert  or  control  governmental  processes  for  selfish 


I  o  Absolutism  and  Self-Government     [§§  5,  6 

or  partisan  ends;  others  are  found  in  institutions  developed  to 
utilize  such  industrial  advantages  as  new  economic  conditions 
make  possible  under  established  law, 

5.  Weakness  of  Local  Self-Govemment 

Whether  living  apart  in  dififerent  tribes,  or  occupying  the 
same  territory  under  the  same  government,  the  one  subordinate 
to  the  other,  historically  the  rule-of-might  has  always  been 
the  test  of  fitness  of  the  one  group  or  class  to  control  and  sur- 
vive. That  group  has  dominated,  that  poHty  has  been  main- 
tained, under  which  politically  organized  people  have  been 
able  to  develop  or  foster  the  development  of  the  greatest 
amount  of  material  force,  and  to  aggregate  it  and  direct  it 
toward  a  given  end. 

Having  for  its  primary  object  the  maintenance  of  social  order 
in  the  commimity  as  an  essential  to  industrial  co-operation, 
local  self-government  was  ill-adapted  to  the  aggregation  and 
direction  of  fighting  force:  isolated,  localized  industry  was  not 
therefore  the  condition  best  adapted  to  survival:  the  small 
independent  political  community  did  not  provide  for  the  most 
economic  production,  and  its  resources  were  not  adequate  for 
defence.  From  experience  it  has  been  found  that  production 
is  most  profitable  when  it  is  based  on  broad  co-operation  and 
division  of  labor.  Organization  on  a  large  scale  is  as  helpful 
to  economic  production  as  it  is  necessary  to  successful  warfare. 
It  has  been  found  that  in  the  struggle  for  supremacy  locaUzed 
industry  and  local  self-government  have  always  yielded  to  the 
broader  organization  of  conquest:  primitive  industry  has  been 
made  a  slave  to  the  more  highly  organized  powers  of  absolutism. 

6.   Limitations  of  Absolutism 

Absolutism,  however,  is  self-limiting.  Inasmuch  as  its 
ascendency  and  domination  are  due  to  force,  its  existence  must 
be  maintained  by  force.  Its  polity  must  be  such  as  not  only 
to  seize  but  to  preserve  spoils  of  conquest.  Territorial  sove- 
reignty must  be  kept  up:    to  that  end  the  domain  is  appor- 


§§  7, 8]  Dominance  of  Absolutism  1 1 

tioned  among  military  leaders.  The  prime  object  being  to 
enjoy  the  fruits  of  the  labor  of  others,  after  the  conquered 
have  been  despoiled  and  enslaved  or  reduced,  the  rulers  must 
maintain  their  control  in  order  to  enjoy  their  plunder:  there- 
fore, the  institutions  of  tenantry,  serfdom,  and  slavery.  But 
though  the  prowess  of  the  predatory  group  of  society  must  of 
necessity  be  greater  than  that  of  the  localized  industrial  groups 
which  it  cpnquers,  so  long  as  it  is  left  to  its  own  devices  it 
remains  predatory.  As  such,  being  parasitic  in  its  nature, 
it  cannot  survive:  it  cannot  sap  the  life-blood  of  the  industrial 
body  upon  which  it  feeds  without  depleting  its  own  forces. 

7.  The  Struggle  for  Supremacy 

Absolutism  unchecked  will,  in  its  very  nature,  destroy  itself. 
The  members  of  such  a  society  must  live;  the  resources  of  war 
must  be  at  hand.  Therefore  it  becomes  necessary  both  to 
foster  industry,  allowing  it  to  grow  strong,  and  at  the  same  time 
to  control  it.  Owing  to  its  economic  advantages  local  self- 
government  has  often  continued  as  a  basal  principle,  but  sub- 
ject to  the  more  general  polity  of  conquest.  From  within, 
absolutism  is  Hmited  by  the  wants  and  demands  of  the  pred- 
atory group  on  the  one  hand  and  the  danger  of  uprising  among 
the  industrial  group  on  the  other.  From  wdthout  it  must  stand 
against  other  predatory  groups.  It  must  maintain  itself 
against  all  the  organized  forces  within  and  without  or 
succumb. 

In  the  economic  struggle  this  self-limitation  has  operated 
to  break  down  the  fictions  of  absolutism.  The  outcome  of 
the  contest  has  been  the  development  of  a  broader  and  superior 
polity,  including  the  best  principles  of  both  systems  and  their 
adaptation  to  the  highest  economic  interests  of  society  —  a 
polity  based  on  general  welfare. 

8.  Dominance  of  Absolutism  in  Asia 

For  many  centuries  the  struggle  was  carried  on  before  this 
broader  and  superior  polity  was  evolved.    In  Asia  the  social 


I  2  Absolutism  and  Self-Government         [§  8 

forces  came  to  accept  a  broad  polity  based  on  absolutism  — 
a  system  fatal  to  industrial  progress;  local  self-government 
was  so  stereotyped  by  custom  and  caste  that  the  struggle  of 
the  industrial  classes  against  both  conquest  and  control  almost 
ceased.  At  an  early  period  the  fictions  of  absolutism  were 
woven  around  most  of  the  Asiatic  people  by  their  conquerors. 
In  this  condition  century  after  century  rolled  by,  and  still  the 
conquered  classes  labored,  believing  that  by  submission  they 
were  doing  the  will  of  the  gods.  Religion,  superstition,  and 
philosophy  were  employed  to  lull  the  industrial  people  into 
quiet  and  fix  upon  them  the  bHght  of  poUtical  and  industrial 
servility.  Here  was  developed  a  highly  refined  form  of  abso- 
lute poHtical  overlordship.  As  nations  they  boasted  a  civiliza- 
tion ancient  and  well  cultured  in  learning  and  in  the  arts.  But 
the  philosophy  of  the  rulers  had  taught  that  the  governing 
classes  should  be  the  recipients  of  all  the  frmts  of  industry  above 
a  mere  subsistence.  The  people  were  sober  and  industrious; 
they  accepted  the  status  of  unresisting  slaves. 

Asiatic  absolutism  became  the  victim  of  its  own  limitations. 
Although  the  institutions  of  caste  and  fictions  of  absolutism 
gave  an  extraordinary  protection  to  the  ruling  classes  against 
danger  from  within,  the  nepotism,  the  despotism,  the  depress- 
ing pessimism  of  the  East  so  weakened  their  national  resources 
that  they  could  not  protect  themselves  from  dangers  without. 
Asia  became  an  inviting  field  of  conquest  for  the  more  sturdy 
and  free  nations  of  the  West.  In  the  spoils  of  the  overlord, 
well-armed  commercialism  demanded  a  share. 

It  has  been  only  recently  that  the  principle  of  political  organi- 
zation based  on  general  welfare  has  taken  hold  on  the  East. 
In  Japan  this  came  with  the  accession  of  rulers  who  recognized 
the  impotence  of  their  nation  as  then  organized.  A  systematic 
study  was  made  of  the  forces  and  factors  of  community  wel- 
fare in  European  countries  and  America.  Following  this  the 
poUtical  institutions  of  Japan  were  so  modified  as  to  make  the 
principle  of  sovereignty  subser\'ient  to  the  common  welfare  of 
the  people.     Within  half  a  century  Japan  has  gained  a  posi- 


§  g]  Supremacy  of  Absolutism  1 3 

tion  of  control  in  the  Orient.  China  now  seems  likely  to 
follow  this  example.  Roused  to  revolt,  those  who  have 
studied  the  principles  and  the  application  of  responsible  govern- 
ment have  become  the  leaders  of  the  people,  and  after  many 
personal  sacrifices  by  those  who  undertook  to  point  the  way, 
the  Manchu  dynasty  has  been  driven  out  and  a  republic  has 
been  estabUshed.  What  the  outcome  \\dll  be  is  difficult  to 
forecast.  Like  other  poUtical  organizations  China  must  main- 
tain itself  and  its  estabHshed  institutions  from  attack  both 
from  within  and  from  wnthout.  This  is  clear,  however,  that 
whatever  be  the  form  of  the  political  organization  ultimately 
adopted,  the  forces  now  at  work  are  those  which  are  striving 
to  bring  the  principles  of  sovereignty  and  community  welfare 
into  harmony. 

9.  Temporary  Supremacy  of  Absolutism  in  Europe 

In  Europe,  under  military  leadership,  broad  sovereignties 
were  established.  Greece,  Rome,  the  Turkish  Empire,  Spain 
each  reached  out  and  brought  the  people  occupying  large 
adjacent  territories  under  the  dominion  of  a  relatively  small 
ruling  class.  Each  of  these  also  developed  a  highly  refined 
form  of  absolutism.  Each  fortified  assumptions  of  privilege 
both  by  poHtical  organization  and  by  the  estabhshment  of  a 
religious  and  social  culture  the  institutional  aim  of  which  was 
to  quicken  the  conscience  and  make  society  subservient  to  the 
ruHng  classes.  At  the  time  of  imperial  estabhshment,  each  of 
the  great  ancient  and  mediaeval  leaders  was  able,  by  superior 
mihtary  force,  to  crush  opposition  from  within  and  from  with- 
out. But  the  effect  of  continuing  social  injustice,  of  the 
operation  of  institutional  privilege,  of  the  self-limitation  of 
absolutism,  was  the  same  as  in  Asia.  The  result  was  insti- 
tutional atrophy,  due  to  the  continuing  poverty  of  those  who 
toiled  and  to  the  increasing  degeneracy  of  those  who  under 
fictions  of  established  law  absorbed  and  wasted  the  social 
surplus. 

With  a  people  strongly  moved  by  ideals  of  social  justice, 


14  Absolutism  and  Self-Government        [§  lo 

absolutism  necessarily  must  disappear.  Under  such  circum- 
stances this  is  the  natural  result  of  education  and  increasing 
wealth.  The  estabUshment  and  the  disintegration  of  broad 
miUtary  sovereignties  are  only  different  phases  of  a  movement 
toward  a  rational,  social,  and  pohtical  adjustment.  Rome  first 
invaded  Northern  Europe  and  carried  with  its  army  ideals 
which  made  for  increasing  welfare;  the  Teutonic  invasion  of 
Rome  was  followed  by  feudalism.  Feudalism,  though  viewed 
by  some  as  a  species  of  anarchy  and  by  others  as  a  miUtary 
absolutism,  was  a  condition  favorable  to  the  develdjiment  of 
the  modern  democratic  state. 

10.  Feudalism  the  Forerunner  of  the  Modem  State 

Feudalism  was  a  form  of  local  autonomy.  It  was  superior 
to  the  village  community,  the  pastoral  group,  the  Teutonic 
town,  in  that  it  adequately  provided  both  for  industrial  activ- 
ity and  for  the  efifective  utilization  of  armed  force.  It  was 
superior  to  a  broad  sovereignty  based  on  ideals  of  conquest 
for  the  reason  that  each  lord  was  forced  to  conserve  the  welfare 
of  the  people  in  order  to  survive.  Although  the  dominant 
spirit  of  its  leaders  was  miUtarism,  this  was  local;  each  lord 
and  baron  was  bound  to  protect  the  welfare  of  those  who  toiled 
and,  if  he  prospered,  each  overlord  was  sooner  or  later  brought 
into  sympathetic  relation  with  the  industrial  groups  subject  to 
his  domination.  By  means  of  the  strongly  fortified  and  superbly 
armed  forces  within  the  jurisdiction  of  each  feudal  domain, 
civiUans  were  protected  from  violence  from  without;  the  con- 
servation of  the  welfare  of  those  who  worked  was  quite  as 
essential  to  the  lord  as  was  armed  protection  to  the  retainer, 
since  upon  the  ability  of  ci\'ilians  to  produce,  each  local  mih- 
tary  organization  must  depend  for  survival.  It  was  not  as  if 
all  political  power  was  organized-  under  and  controlled  by  one 
military  head,  as  at  Rome,  but  there  were  hundreds  of  small 
leaders,  warring  with  each  other,  and  often  with  the  titular 
monarch.  The  lord  or  baron  who  neglected  the  interests  of 
his  people  faced  certain  destruction.    The  ideal  of  government 


§  lo]  Feudalism  15 

for  the  governed  became  an  evolutionary  necessity,  and  in  the 
contest  which  followed  the  principle  of  sovereignty  and  self- 
government  was  harmonized. 

Under  the  feudal  regime  effective  sovereignty  was  gradually 
broadened,  but  by  operation  of  forces  so  evenly  balanced  that 
the  ruling  classes  were  gradually  reduced  to  a  careful  observance 
of  the  principle  of  institutional  responsibility  —  they  were 
required  to  exercise  their  powers  of  sovereignty  in  the  interests 
of  the  governed,  and  the  pledges  exacted,  the  conditions  from 
time  to  time  prescribed,  became  charters  of  government. 

Institutions,  like  living  organisms,  have  been  evolved  by 
the  most  rigorous  competition.  In  the  struggles  between 
institutions  or  other  organisms,  the  "law  of  advantage"  be- 
comes a  law  of  necessity :  any  adaptation  which  gives  to  the  one 
or  the  other  an  advantage  in  the  struggle  determines  which 
will  survive.  Under  the  feudal  regime  the  adaptation  made 
by  those  who  exercised  power  under  assumptions  of  absolu- 
tism, based  on  conquest,  were  adaptations  of  necessity:  of 
necessity  the  armed  forces  must  seek  a  place  which  could  be 
successfully  fortified;  of  necessity  those  who  labored  for  the 
lord  in  various  occupations  essential  to  his  pleasure,  protection, 
or  well-being  gathered  in  communities  outside  of  fortifications; 
in  the  contest  for  survival  these  industrial  communities  were  of 
necessity  formed  in  places  best  suited  to  industry  and  com- 
merce and  at  times  far  removed  from  the  castle.  Under  such 
circumstances  the  same  law  of  necessity  pointed  to  the  advan- 
tage of  fostering  industry  by  permitting  those  who  toiled 
(though  at  first  they  might  have  been  serfs  or  slaves)  to  retain 
some  of  the  fruits  of  their  own  labor.  This  later  result  was 
obtained  through  a  series  of  "freedoms"  —  i.e.,  Hcenses  granted 
or  practices  allowed  by  those  in  control  whereby  the  industrial 
people  were  freed  from  exactions,  and  were  also  allowed  to 
conduct  their  own  local  ci\dl  government.  This  arrangement 
by  compact  or  by  consent  of  baron  or  sovereign  provided  for 
the  operation  of  self-government  in  all  respects  except  such  as 
pertained  to  defence  and  intercommunity  relations. 


1 6  Absolutism  and  Self-Government       [§  n 

11.  English  Adaptation  to  Industrial  Welfare 

England,  among  the  most  prosperous  of  modem  nations, 
is  a  conspicuous  example  of  the  operation  of  the  principle  just 
discussed.  Here  the  environment  was  especially  adapted  to 
the  development  and  final  supremacy  of  an  industrial  polity. 
Nature  had  especially  equipped  her  as  the  home  of  a  maritime 
and  industrial  people.  Her  insular  condition,  the  harbors 
on  her  coast,  her  geographical  position,  fitted  her  for  extensive 
commercial  intercourse  with  other  nations.  So  too,  her  soil 
and  her  mineral  resources  offered  encouragement  to  labor  and 
to  risk.  In  turn  the  victim  of  invasion  by  Roman,  Pict, 
Angle  and  Saxon,  Dane  and  Norman,  still  through  all  the 
vicissitudes  of  conquest  this  sturdy  industrial  people  of  the 
British  Isles  retained  their  local  institutional  autonomy. 

With  the  advent  of  the  Normans  the  general  government  of 
England  was  organized  on  a  broad  predatory  basis.  Its  gen- 
eral poUty  was  the  polity  of  conquest,  having  the  character  of 
absolutism.  The  conqueror,  having  overrun  the  island  with 
his  military  bands,  apportioned  the  soil  among  his  colleagues 
or  retained  it  for  his  own  use.  The  chief  maxim  of  govern- 
ment relentlessly  impressed  on  those  who  toiled  was:  "The 
King  is  the  source  of  all  power  and  the  fountainhead  of  justice." 
The  "government"  was  made  up  of  conquerors,  or  those  on 
whom  special  privileges  were  conferred  by  the  King.  Such 
fictions  as  "The  King  can  do  no  ^\Tong,"  "Divine  Right," 
"Absolute  Sovereignty,"  and  "Hereditary  Succession"  were 
among  the  legal  notions  and  political  concepts  established  by 
rule-of-might  for  the  perpetuation  of  special  privileges  gained 
in  conquest. 

But  the  forces  of  absolutism  were  at  once  divided  between 
two  estates.  The  land  and  local  jurisdictions  having  been 
apportioned  among  the  mihtary  leaders,  the  interests  of  lords 
and  king  became  often  opposed.  A  contest  for  authority 
ensued,  and  out  of  this  contest  a  third  estate  arose.  This 
third  estate  was  still  largely  made  up  of  the  privileged  land- 


§ii]  Industrial  Welfare  17 

holding  class.  The  continental  feudal  drama  was  re-enacted, 
warring  parties  found  it  necessary  to  have  military  resources 
and  means  of  subsistence  at  hand,  each  found  it  advantageous 
to  protect  those  who  toiled.  While  the  industrial  community, 
organized  in  the  cities  and  in  the  manor,  imder  systems  of  local 
self-government,  was  being  fostered  by  lord  and  king,  the 
people  through  the  municipality,  the  guild,  the  private  corpora- 
tion, were  being  trained  to  employ  the  powers  of  state  in  their 
own  behalf.  Organized  industrial  groups  who  controlled  the 
principal  material  resources  of  the  nation  were  thus  eventually 
able  to  impose  limitations  on  both  lords  and  Crown. 

From  the  evidence  at  hand,  it  would  appear  that  the  first 
forms  of  "freedoms"  of  indi\dduals  and  companies  were  exer- 
cised by  sufferance.  Thereafter  respect  was  had  for  custom. 
To  usage  were  later  added  certain  specific  grants  in  the  nature 
of  "composition"  for  tolls,  fines,  and  other  forms  of  precarious 
tribute  levied  or  exacted  by  the  lord  or  sovereign.  Thus  the 
privileges  and  Hberties  estabhshed  by  custom  grew.  After 
the  Norman  Conquest  the  inhabitants  were  considered  "tenants 
or  dependents  of  the  King,  or  some  particular  nobleman  on 
whose  demesne  they  resided."  While  serving  in  this  relation 
their  superiors  exacted  from  them  not  only  rent  for  the  lands, 
but  also  various  tolls  and  duties  for  goods  made  or  exchanged. 
Owing  to  the  attempted  evasions  and  oppressive  exactions 
resorted  to  in  the  collection  of  these  tolls  and  duties,  the  enter- 
prising industrial  inhabitants  of  the  towns  were  constrained  to 
make  bargains  by  which  they  undertook  to  pay  certain  annual 
fees  in  Heu  of  other  demands.  These  compositions  having'been 
found  advantageous  to  both  parties,  they  were  continued  and 
finally  made  perpetual.  Various  forms  of  license,  or  charter, 
to  mediaeval  towns  are  set  forth  by  Gross  in  his  Gild  Merchant. 
One  that  he  takes  as  a  type  is  that  granted  to  Ipswich,  England, 
a  part  of  which  is  as  follows:  "John  by  the  grace  of  God  King, 
etc.,  know  ye  that  we  have  granted,  and  by  our  present  charter 
confirmed,  to  our  burgesses  of  Ipswich,  our  borough  of  Ipswich 
with  all  of  its  appurtenances  and  its  liberties  and  free  customs 
3 


1 8  Absolutism  and  Self-Government        [§  n 

to  be  held  of  us  and  our  heirs  by  them,  and  their  heirs  heredi- 
tarily, paying  annually  at  our  Exchequer  the  right  and  cus- 
tomary ferm  at  Michaelmas  term,  by  the  hand  of  the  provost 
of  Ipswich  and  a  hundred  shillings  of  increment  at  the  same 
term,  which  they  were  accustomed  to  pay.  We  have  also 
granted  to  them  that  the  burgesses  of  Ipswich  may  be  quit  of 
toll  and  stallage,  lastage,  passage,  pontage,  and  all  other  customs 
throughout  our  whole  land,  and  in  our  seaports."  ^  In  this 
the  "freedoms"  from  various  ancient  forms  of  tribute  and  their 
commutation  to  an  annual  tax  or  duty  is  the  principal  element. 

After  the  composition  of  fines  had  been  granted,  certain 
poHtical  privileges,  or  "freedoms,"  such  as  the  holding  of  courts, 
government  by  a  representative  council,  etc.,  were  gradually 
added.  The  government  of  the  feudal  town  gradually  assumed 
a  local  autonomous  character  under  forms  similar  to  the  Italian 
free  cities  and  the  modern  municipal  corporation.  But  this 
local  poUtical  organism  became  a  part  of  the  broader  political 
whole  to  whose  national  revenues  it  contributed  as  compensa- 
tion for  protection  against  forces  from  without. 

Many  of  the  European  towns  went  so  far  as  to  throw  oflf 
entirely  the  authority  of  their  superiors,  to  raise  up  armies  to 
defend  themselves  from  foreign  enemies,  and  to  become  com- 
plete governments  within  themselves.  But  this  proved  a  fail- 
ure. While  they  might  by  this  means  provide  against  the 
exaction  of  superiors  they  ignored  one  of  the  conditions  of 
success  in  the  struggle  for  existence.  The  advantage  was 
always  with  those  which  had  a  broader  organization,  provided 
that  the  broader  organization  was  not  parasitic.  It  was  only 
by  alliance  of  the  free  cities  that  they  could  withstand  the  forces 
which  pressed  upon  them.  But  alliance  either  led  to  internal 
contention  or  matured  into  a  broader  government.  The 
struggle  between  nations  was  the  condition  which  compelled 
the  evolution  of  the  broader  poKty,  a  polity  which  had  regard 
for  the  welfare  of  its  subjects. 

1  Gross,  Charles,  Gild  Merchant,  vol.  i,  p.  7.  See  also  Appendix  to  vol.  i 
and  the  Charters  set  forth  in  vol.  ii. 


§§  12,  13]  Guild  and  Corporation  19 

12.  The  Guild  and  the  Public  Corporation 

A  second  important  feature,  one  that  played  a  large  part 
in  the  life  of  the  mediaeval  city,  one  to  which  we  are  largely 
indebted  for  our  modern  political  institutions,  was  the 
guild.  This  was  a  voluntary  and,  at  first,  a  private  associa- 
tion among  the  industrial  classes,  having  for  its  object  the 
promotion  of  the  economic  interests  of  its  members  —  the 
merchants  and  craftsmen  of  the  town  and  surrounding  country. 
These  voluntary  associations  gradually  came  to  form  a  recog- 
nized part  of  the  city  government  and  by  Hcense,  whether  from 
the  city  council,  the  lord,  or  sovereign,  they  were  allowed  in 
combinations  to  control  the  industrial  affairs  of  the  city,  pro- 
vide trade  regulations,  etc.  The  organization  of  guilds  and 
their  ultimate  incorporation  into  the  city  government  practically 
placed  the  control  of  the  municipaUty  in  the  hands  of  the 
industrial  people.^ 

13.  The  Private  Corporation  as  a  Factor 

Most  important  of  all  institutions  is  the  now  much  criticised 
private  corporation.  In  this  is  found  the  prototype  of  the 
modern  democratic  state:  its  polity  is  one  of  self-government; 
its  theme  is  the  welfare  of  its  members;  its  method  is  co-opera- 
tion for  common  ends;  its  government  is  one  of  delegated 
powers;  its  organic  principle  is  responsibility  of  the  governor 
to  the  governed  —  of  accountability  of  trustees  to  beneficia- 
ries; its  co-operation  is  based  upon  consent. 

The  private  corporation  seems  to  have  had  its  beginning 
and  to  owe  its  peculiar  quahties  to  much  the  same  course  of 
events  as  the  incorporated  city  and  the  guild.  In  the  general 
conflict  between  monarch  and  nobility  the  communities,  organ- 
ized as  towns,  had  obtained  freedom  from  pillage  or  from 
exaction  through  a  license  granted  by  the  King  or  a  baron  in 
return  for  pledges  of  needed  support  or  stipulated  revenue. 

^  See  Gross,  Charles,  Gild  Mcrrhant ;  von*Maurer,  G.  L.,  Stadtver- 
fassimg;  von  Buelow,  Georg,  Stadtgcmcindc. 


20         Absolutism  and  Self-Government        [§  13 

In  the  same  manner  the  merchants  or  craftsmen  obtained 
license  against  interference  with  their  trade,  and  finally 
had  certain  privileges  of  regulation  conferred  upon  them. 
Under  these  Ucenses  and  the  broader  sovereignty  which  the 
monarch  was  able  to  establish,  the  industrial  organization 
expanded.  Those  who  theretofore  fabricated  their  own  articles 
or  cultivated  their  own  produce,  and  went  into  the  market  to 
exchange  them,  found  it  more  advantageous  to  speciaHze,  and 
the  industrial  community  became  differentiated  in  its  func- 
tions. The  guild  organization  followed  the  same  course. 
Instead  of  there  being  but  one  guild  merchant,  there  came  to 
be  many  craft  guilds  in  a  single  town,  each  having  in  mind 
the  protection  of  particular  interests.  Still  farther  the  indus- 
trial interests  ex^janded,  until  it  became  advantageous  to  extend 
commercial  and  industrial  operations  beyond  the  possible  reach 
of  guild  associations. 

The  first  private  corporation  seems  to  have  been  a  product 
of  this  business  need.  But  in  order  to  co-operate  to  advantage 
in  this  new  relation  it  became  necessary,  as  in  case  of  the  guild 
and  the  town,  to  procure  "freedoms"  (franchises)  which  would 
remove  the  body  corporate  from  exactions  and  damaging 
restrictions.  For  example,  a  number  of  persons  might  wash  to 
combine  a  certain  part  of  their  property  for  the  purpose  of 
m^utual  benefit  and  co-operative  action.  The  most  advanta- 
geous way  of  treating  this  property  would  be  as  a  common  fimd. 
If,  however,  a  part  of  the  property  were  land  it  was  subject  to 
the  feudal  burdens  of  wardship,  escheat,  reUef,  non-entry, 
military  service,  etc.,  which,  if  the  land  were  held  by  a  cor- 
porate body,  would  be  lost  to  the  sovereign.  In  England  an 
adjustment  seems  to  have  been  made  imder  the  form  of  a 
" Hcense  in  mort  main."  By  this  device  " captains  of  industry  " 
were  enabled  to  relieve  themselves  of  feudal  burdens  and  dis- 
abihties,  and  the  King  in  turn  was  able  to  swell  his  revenues 
by  composition  in  a  fixed  sum.  In  other  words,  the  prospec- 
tive revenues  to  be  derived  by  the  Crown  from  the  "feudal 
casualties"  were  commuted  to  a  fixed  sum  agreed  upon  by  the 


§14]  Modern  Democratic  State  21 

parties.  This  was  one  of  the  means  by  which  revenue  was 
procured  by  the  Crown  and  a  Hcense  for  broader  and  more 
advantageous  organization  was  obtained  by  the  industrial 
trade  bodies.  The  result  was  the  breaking  down  of  a  certain 
part  of  the  more  local  feudal  regime  in  the  interest  of  a  broad 
sovereignty  brought  to  the  aid  of  industry  and  general  welfare. 

14.  The  Modem  Democratic  State 

Through  these  various  forms  of  industrial,  political,  and 
social  adjustment  the  modern  state  has  risen.  By  freedom  from 
pillage  and  exaction,  secured  to  the  municipahty,  the  conditions 
were  present  for  profitable  production;  by  freedom  from  re- 
straint secured  to  the  guilds,  co-operation  was  enlarged;  by 
freedom  from  certain  feudal  burdens,  the  parasitic  overlord 
was  weakened;  and  by  grants  of  advantage,  secured  to  the 
private  corporation,  the  industrial  organization  reached  out 
till  it  became  coterminous  with  the  jurisdiction  of  the  Sovereign 
—  it  even  went  farther  and  became  the  advance  agent  of 
colonization.  These  forms  of  organization,  based  on  compact, 
may  be  regarded  as  a  new  foundation  for  the  modern  state. 
The  whole  social  and  poHtical  system  became  shifted  from  one 
of  conquest  and  force  to  one  based  on  consent  of  the  governed. 
The  rule  of  absolutism  gave  way  to  constitutional  government 
which  had  its  rationale  in  concepts  of  welfare  of  the  governed. 
Then,  also,  it  was  through  these  various  forms  of  co-operative 
action  that  the  people  learned  to  govern  themselves.  It  was 
in  these  industrial  "communities  of  interest"  that  the  principle 
of  representation  took  its  root  and  expanded  until  it  came  to 
include  t^e  broad  poUtical  community  —  the  state. 

Let  us  follow  the  evolution  a  step  farther.  The  business 
unit  thus  organized  and  fostered  recognized  no  political  barrier 
where  opportunity  was  afforded  to  trade  at  a  profit.  As  each 
economic  "community  of  interests"  broadened,  as  it  extended, 
beyond  the  political  jurisdiction  of  the  state,  there  was  also 
a  tendency  to  enlarge  the  political  organization  in  order  that 
economic   "community   of  interests"   might   be  protected  in 


22  Absolutism  and  Self-Government        [§  14 

foreign  lands.  The  modern  imperial  state  is  but  a  cloak  which 
has  been  put  on  by  nationaUzed  industriaUsm.  Around  this 
nationaUsm  has  been  woven  a  web  of  patriotism  that  has 
demanded  of  the  government  the  maintenance  of  armaments 
adequate  to  protection,  not  alone  within  the  territorial 
limits  of  the  state — armaments  capable  of  following  the  flag 
of  the  merchantman  to  foreign  ports,  of  blowing  open  the 
gates  of  commerce  wherever  they  may  be  found  closed,  of  pro- 
moting citizen  interests  in  foreign  fields,  of  forcing  conformity 
to  the  home  institutes  of  business  moraUty  and  law.  The 
modern  test  which  has  been  placed  on  government  is  not  alone 
abihty  to  withstand  attack,  to  cope  with  forces  organized 
against  it  within  and  without,  but  whenever  the  economic 
interests  of  the  people  have  demanded,  to  obtrude  itself  and 
its  institutions  on  others.  It  is  in  the  equipment  needed  to 
meet  this  last  test  that  the  reason  is  found  for  incurring 
a  large  part  of  the  more  recent  miUtary  expenditure.  The 
modern  empire  may  be  said  to  be  the  product  of  economic 
conquest.  Political  organization  has  expanded  as  fast  as  civil 
order,  and  mihtary  protection  has  been  demanded  to  further 
the  interests  of  citizens  who  have  claimed  protection  as  a  right. 
The  foundation  of  the  modern  state  is  the  welfare  of  its  citizens; 
its  dominant  motives  are  industrial;  the  government  is  organ- 
ized and  used  as  an  agent  for  the  promotion  of  the  welfare  of 
citizens  as  interpreted  by  them.  With  respect  to  peoples  who 
Uve  outside  the  territorial  jurisdiction  of  a  particular  political 
unit,  those  who  live  within  are  still  in  the  attitude  of  utiHzing 
the  governmental  machinery  for  predatory  purposes.  And 
this  is  inevitable  until  the  world  powers  come  to  adopt  a 
common  culture,  which  carries  with  it  a  common  morality  and 
a  feeling  of  community  of  interest  which  shall  give  to  inter- 
national law  a  sanction  akin  to  world  government  based  on 
consent. 


CHAPTER  II 
FICTIONS   OF   ABSOLUTISM   TRANSPLANTED   TO   /VMERICA 

15.   References 

Bibliography:  Channing,  Hart  and  Turner,  Guide  to  the  Study  and 
Reading  of  American  History  (1912),  §§  iii,  113,  114,  115,  121,  132-135; 
Justin  Winsor,  Narrative  and  Critical  History  of  America  (1884-1889),  III, 
chs.  i,  V,  vi,  121-126,  340-348;  J.  W.  Lamed,  Literature  of  American  History 
(1902),  parts  ii  and  iii. 

General:  George  Bancroft,  History  of  the  United  States  (rev.  ed.,  1883- 
1885),  I;  E.  Channing,  United  States  (1905),  I;  J.  A.  Doyle,  Virginia 
(1882);  J.  A.  Doyle,  Puritan  Colonies  (1882),  I;  Edward  Eggleston,  Begin- 
ners of  a  Nation  (1896);  J.  Fiske,  Discovery  of  America  (1892),  II;  J.  Fiske, 
Old  Virginia  and  her  Neighbors  (2  vols.,  1897);  E.  B.  Greene,  Provincial 
America  (1905),  ch.  xv;  R.  Hildreth,  United  States  (rev.  ed.,  1880),  I;  J.  G. 
Palfrey,  New  England  (5  vols.,  1858-1890);  L.  G.  Tyler,  England  in  Amer- 
ica (1904);  Justin  Winsor,  Narrative  and  Critical  History  of  America  (1884- 
1889),  III,  V. 

16.   The  Palatinate 

In  the  year  1497  John  Cabot  under  a  royal  commission  sailed 
along  the  eastern  coast  of  North  America  from  Newfoundland 
south  to  the  thirty-eighth  degree  north  latitude,  by  virtue  of 
which  fact  Henry  VII  assumed  to  be  the  rightful  owner  not  only 
of  the  territory  actually  coasted  by  this  navigator,  but  also  of 
islands  near  the  eastern  shore  and  an  indefinite  territory  inland. 
The  Indians  and  the  later  European  inhabitants  were  there- 
after regarded  as  holding  the  soil  and  as  exercising  functions 
of  government  subject  to  the  English  Sovereign  —  they  were 
assumed  to  hold  only  rights  of  occupancy  and  use  subordinate 
to  the  title  of  the  King.  Upon  this  fiction  of  royal  land  owner- 
ship founded  on  a  theory  of  English  absolutism  all  the  govern- 
mental structures  in  America  were  built. ^ 

The  first  institutions  erected  thereon  were  considered  as 
gifts  and  grants  of  the  Sovereign.     Charters  granted  by  the 

1  Story,  J.,  Commentaries  on  the  Constitution,  vol.  i,  sees.  2,  6,  7.  See 
Johnson  v.  Mcintosh,  8  Wheat.  548. 


24  Absolutism  in  America  [§  17 

Crown  were  based  on  ideals  and  legal  concepts  of  feudalism 
and  conquest,  and  were  in  the  nature  of  traditional  fiefs.  The 
grantees  of  the  charters  to  John  Cabot  (1497)  and  Hugh  Eliot 
(1502)  were  empowered  to  subdue  and  possess  the  territories 
discovered  as  the  vassals  and  lieutenants  of  the  King.^  By  the 
charters  granted  to  Sir  Humphrey  Gilbert  (1578)  and  Sir  Walter 
Raleigh  (1584),  and  later  in  the  Carolinas,  attempts  were  made 
to  erect  in  the  western  wilderness  that  form  of  fief  known  as  a 
palatinate.  Nevertheless  those  four  charters  and  the  two 
attempts  at  colonization  under  them  had  no  effect  other  than 
to  put  into  definite  form  the  primary  assumption  of  British 
sovereignty  over  all  this  new  territory. 

17.  The  Pure  Monarchy 

The  seventeenth  century  ushered  in  a  new  series  of  attempts 
at  colonization  in  which  the  Kmg  retained  to  himself  the 
exercise  of  all  the  regalities  and  sovereign  powers.  Instead  of 
granting  governmental  powers  to  an  underlord  and  allowing 
him  to  organize  a  palatinate,  he  simply  granted  to  persons  who 
would  exploit  the  new  continent  a  right  to  settle  on  specified 
parts  of  the  royal  domain.  By  the  first  charter  of  Virginia 
(1606)  they  were  permitted  only  to  hold  land  under  the  assump- 
tion of  ownership  by  the  King,  no  governmental  powers  what- 
ever being  extended  to  the  grantees.^  The  holders  of  the 
land  held  it  as  a  royal  province,  or,  we  might  say,  as  a  palati- 
nate over  which  the  King  himself  was  the  lord,  having  its  admm- 
istration  in  England.  The  Royal  Council  of  Virginia  was  the 
creation  of  the  King,  as  were  also,  indirectly,  the  local  councils, 
designed  to  be  sent  out  for  each  of  the  colonies. 

The  patentees  who  interested  themselves  in  "the  first  colony" 
(Virginia)  were  able  to  keep  up  only  a  weak  and  dwindling 
settlement  till  a  change  in  organization  was  effected.  The 
patentees  who  were  to  settle  New  England  made  only  one 

1  Osgood,  H.  L.,  The  Proprietary  Province  as  a  Form  of  Colonial  Govern- 
ment  {Am.  Hist.  Rev.,  vol.  ii,  p.  64-/). 

*  Osgood,  H.  L.,  Pol.  Sci.  Quart.,  vol.  xi,  p.  266. 


§  i8]  Chartered  Company  25 

settlement,  Sagadahoc,  and  that  entirely  disappeared.  It 
became  evident  to  all  concerned  that  a  body  of  men  who  were 
trained  in  the  exercise  of  arbitrary  power,  who  resided  thou- 
sands of  miles  from  the  colony,  and  who  knew  Uttle  or  nothing 
of  prevaiUng  conditions  could  not  make  the  adaptations  re- 
quired to  bring  success.  Failure  stamps  the  second  form  of 
experiment  in  colonization. 

18.  The  Chartered  Company 

Tliat  the  interests  of  the  colonists  might  be  better  conserved, 
another  form  of  organization  was  now  employed.  The  chartered 
company  was  taken  as  a  model.  It  was  formally  incorporated 
and  given  certain  political  powers  for  the  orderly  conduct  of 
affairs.  The  essay  was  made  in  1609  by  the  second  charter 
of  Virginia,  which  recites  that  "Whereas  at  the  humble  Suit 
and  Request  of  sundry  of  our  loving  and  well-disposed  Subjects, 
intending  to  deduce  a  Colony,  and  to  make  Habitation  and 
Plantation  of  sundry  of  our  People  in  that  Part  of  America 
commonly  called  Virginia.  .  .  .  Now,  for  as  much  as  divers 
and  sundry  of  our  loving  Subjects  .  .  .  have  of  late  been 
humble  Suitors  unto  Us,  that  (in  Respect  of  their  great  Charges 
and  the  Adventure  of  many  of  their  Lives,  which  they  have 
hasarded  in  the  said  Discovery  and  Plantation  of  the  said 
Country)  We  would  be  pleased  to  grant  them  a  further  Enlarge- 
ment and  Explanation  of  the  said  Grant,  Privileges  and  Liber- 
ties, and  that  such  Counsellors,  and  other  Officers,  may  be 
appointed  amongst  them,  to  manage  and  direct  their  Affairs. 
.  .  .  We  greatly  affecting  the  effectual  Prosecution  and  happy 
success  of  the  said  Plantation,  and  commending  their  good 
desires  therein,  for  further  Encouragement  ...  do  of  our 
especial  Grace  .  .  .  Give,  Grant,  and  Confirm,  to  our  trusty 
and  beloved  Subjects  [naming  about  six  hundred  fifty  persons 
besides  over  fifty  liveried  companies  interested]  and  to  such 
and  so  many  as  they  do,  or  shall  hereafter  admit  to  be  joined 
with  them  .  .  .  whether  they  go  in  their  Persons  to  be  Planters 
there  in  the  said  Plantation,  or  whether  they  go  not,  but  adven- 


26  Absolutism  in  America  [§  19 

ture  their  monies,  goods  or  chattels,  that  they  shall  be  one  Body 
or  Commonalty  perpetual  [providing  for  the  ordinary  powers 
of  a  private  company]  .  .  .  and  forasmuch  as  it  shall  be  nec- 
essary for  all  such  our  loving  Subjects  as  shall  inhabit  within 
the  said  Precincts  of  Virginia  aforesaid,  to  determine  to  live 
together  in  the  Fear  and  true  Worship  of  Almighty  God,  Chris- 
tian Peace,  and  Civil  Quietness  each  with  the  other,  whereby 
everyone  may  with  more  Safety,  Pleasure,  and  Profit  enjoy 
that  whereunto  they  shall  attain  with  great  Pain  and  Peril," 
full  political  powers  are  granted  to  elect  officers,  provide  the 
proper  forms  and  ceremonies  of  office,  "to  correct,  punish, 
pardon,  govern  and  rule,"  all  subjects  within  the  territory 
granted  or  going  to  and  from  the  same,  to  suppress  rebellion, 
exercise  martial  law,  etc.^ 

19.  Virginia  as  an  Investment  Company 

The  essential  change  was  to  make  colonial  government  a 
matter  of  business.  This  was  done  by  placing  the  full  direc- 
tion of  affairs  in  the  hands  of  those  who  were  materially  inter- 
ested in  the  success  of  the  enterprise.  They  were  given  control 
over  a  tract  of  land  about  four  hundred  miles  wide  and  nomi- 
nally extending  across  the  continent.  The  company  had  abso- 
lute power  to  dispose  of  the  land  as  they  pleased  and  to  govern 
in  such  manner  as  was  necessary  to  protect  the  interests  of  all 
concerned.  They  aimed  to  make  money:  the  land  cost  them 
nothing  outright.  Their  purpose  was  to  obtain  the  largest 
return  in  profits  for  the  least  capital  outlay.  Royal  dignities, 
memorial  and  feudal  privileges  were  Httle  valued — they  wanted 
shillings  and  pence. 

Their  appeal  was  to  the  financial  interests.  They  laid  their 
"propositions"  before  the  public  in  much  the  same  way  that  a 
modern  mining  company  would  do  —  as  an  investment.  A 
share  in  the  advantages  of  development  of  the  immense  natural 
resources  of  America  might  be  obtained  through  the  company 
in  several  ways: 

^  Poore,  B.  P.,  Charters  and  Constitutions,  p.  1893,  etc. 


§  iq]  Investment  Company  27 

1.  By  Purchase.  —  The  payment  of  £12  los.  would  secure 
a  bill  of  adventure  or  one  share  of  stock,  which  entitled  the 
holder  to  one  hundred  acres  of  land  at  once  and  after  this  was 
settled,  or  "seated,"  one  hundred  acres  additional  upon  the 
second  distribution,  and  also  a  share  in  the  profits,  a  division 
of  which  was  to  come  about  16 16.  All  who  received  bills 
prior  to  1625  were  to  be  exempt  from  quit  rents. 

2.  By  Service  Rendered.  —  Those  who  became  tenants  or 
servants  of  the  company  (previous  to  the  return  of  Sir  Thomas 
Dale)  were  to  be  allowed,  at  the  expiration  of  their  term  of 
service,  a  patent  to  one  hundred  acres  of  land  and  were  entitled 
to  one  hundred  acres  more  at  the  second  distribution,  provided 
that  a  house  were  erected  on  the  second  hundred  acres  \A'ithin 
three  years.  Such  service  was  considered  as  equal  to  the 
purchase  of  one  share.  A  planter  who  at  his  own  cost  went 
to  the  colony  was  given  one  hundred  acres  and  placed  on  a 
one-share  footing.  One  person  might  also  combine  the  rights 
of  purchase  and  the  rights  of  ser\dce  and  thus  augment  his 
economic  advantage.  Official  service  was  to  be  recognized 
by  grants  of  land  suitable  to  the  station  of  the  ofiicer;  and  for 
meritorious  service,  of  military  or  other  character  invohing 
sacrifice  or  valor,  great  liberality  was  shown. 

3.  By  Head  Right.  —  Each  shareholder  who  transported  an 
emigrant,  free  or  bond,  was  entitled  to  fifty  acres  in  the  second 
distribution  —  i.e.,  the  rights  of  one  half  of  a  share.  The 
same  inducement  was  soon  offered  to  all  persons. 

In  addition  the  company  offered  civil  order  and  miHtary 
protection.  To  its  own  tenants  and  servants  supplies  were 
also  furnished.  Such  may  be  considered  the  "prospectus" 
of  the  company. 

England  was  in  an  era  of  increasing  accumulation  of  capital 
on  the  one  hand,  and  increasing  economic  pressure  on  the  lower 
classes  on  the  other,  so  that  the  corporation  brought  together 
the  elements  for  success  in  colonial  enterprise.  Under  the 
economic  advantages  offered  to  settlers  and  the  protection 
secured  by  miUtary  organization,  the  colony  grew.    But  in 


28  Absolutism  in  America 


20 


growing  the  settlers  demanded  a  form  of  political  organization 
that  would  be  responsive  to  their  own  interests.  The  com- 
pany attempted  to  manage  the  colony  through  a  branch  oflSce. 
As  a  government  it  resembled  a  miHtary  despotism  and  was  a 
failure. 

The  democratic  spirit  of  the  settlers  soon  manifested  itself 
in  pohtical  organization.  When  the  corporation  became  prac- 
tically bankrupt,  partly  through  the  infidelity  of  its  ofiicers, 
and  certain  co-operative  companies  desired  to  obtain  grants 
of  land  with  a  measure  of  local  autonomy,  this  was  conceded. 
As  a  result  the  EngUsh  borough  was  taken  for  a  model  of  local 
organization.  Each  plantation  (settlement)  and  corporation 
(town)  was  estabhshed  as  a  pohtical  imit.  Yeardley,  after 
the  disastrous  administration  of  Argall,  was  instructed  to  call 
an  assembly  to  be  composed  of  two  representatives  from  each 
of  the  plantations  and  corporations.  This  Assembly  of  Bur- 
gesses (16 19)  cemented  the  local  political  units  of  the  colony 
together  into  one  political  whole.  The  colony  came  to  feel 
that  it  was  poHtically  superior  to  the  company.  The  company 
itself,  involved  in  conflicts  and  attempts  at  adjustment,  finally, 
on  June  16,  1624,  by  quo  warranto  proceedings,  was  dissolved. 
Thereafter  Virginia  was  an  incorporated  province,  having  its 
governmental  machinery  within  the  colony,  and  thus  laid  the 
foundation  for  a  new  nation.  As  an  economic  organization  the 
investment  company  was  superior  to  the  forms  that  had  pre- 
ceded it,  but  as  a  pohtical  estabhshment  it  too  must  be  regarded 
as  a  failure. 

20.  Massachusetts  Bay  as  a  Self-Goveming  Land  Company 

The  Massachusetts  Bay  Company,  in  its  origin,  was  involved 
in  much  the  same  form  of  corporate  organization.  Its  history, 
however,  was  quite  different.  Sorhe  of  the  patentees  of  "the 
second  colony"  (New  England)  under  the  charter  of  1606, 
after  the  failure  of  the  Sagadahoc  enterprise,  procured  a  charter 
from  the  King  in  1620  under  the  name  of  "The  Council  estab- 
hshed at  Plymouth  in  the  County  of  Devon  (Eng.)  for  the 


§  2o]  Land  Company  29 

Planting,  Ruling  and  Governing  of  New  England  in  America," 
commonly  known  as  the  "New  England  Council."  The 
charter  was  probably  modelled  after  that  of  Virginia  of  1609  in 
powers  and  form  of  organization.  Massachusetts  soon  became 
attractive  by  reason  of  its  fisheries,  and  in  1623  a  station  was 
estabUshed  at  Cape  Ann. 

The  enterprise  had  proved  a  failure,  but  six  of  the  adventur- 
ers, in  1628,  procured  a  grant  of  territory  from  the  "New  Eng- 
land Council,"  and  these,  with  others,  obtained  from  the  Crown 
a  charter  of  incorporation,  confirming  the  territorial  grant  of 
"The  New  England  Council"  and  adding  full  corporate  and 
governmental  powers.  The  corporation  also  modelled  after  the 
Virginia  Company  of  1609  was  known  as  the  Company  of 
Massachusetts  Bay  in  New  England.  The  administration  of 
its  afifairs  was  given  to  a  governor,  a  deputy,  and  eighteen 
assistants,  elected  annually  by  freemen  (members  of  the  cor- 
poration), "which  said  Ofl&cers  shall  appUe  themselves  to  take 
Care  for  the  best  disposeing  and  ordering  of  the  generall  buysines 
and  AflFaires  of,  for,  and  concerning  the  said  Landes  and  Premis- 
ses hereby  mencoed,  to  be  granted  and  the  Plantacion  thereof, 
and  the  Government  of  the  People  there."  This  administra- 
tive body  was  to  meet  once  a  month.  Four  times  a  year, 
"upon  every  last  Wednesday  in  Hilary,  Easter,  Trinity  and 
Michas  Termes  respectively  forever,"  there  was  to  be  "one 
greate  generall  and  solemne  assemblie"  of  the  company,  quar- 
terly levied,  to  consist  of  the  governor,  the  assistants,  and  all 
the  freemen  that  might  attend,  and  this  "greate  and  generall 
assembhe"  was  entrusted  with  full  power  to  choose  and  admit 
into  the  company  so  many  as  they  should  think  fit,  to  elect 
and  constitute  all  requisite  ofiicers,  and  to  make  laws  and 
ordinances  for  the  welfare  of  the  company  and  for  the  inhabi- 
tants of  the  plantation,  "soe  as  such  lav;s  and  ordinances  be 
not  contrarie  and  repugnant  to  our  laws  and  statuts  of  this  our 
realme  of  England."  ^  The  seat  of  the  company  remained 
in  England  till  1629,  when,  at  a  general  court  of  "assembhe" 
1  Poore,  B.  P.,  Charters  and  Constitutions,  vol.  i,  pp.  936-937. 


30 


Absolutism  in  America  [§  20 


held  August  29,  it  was  voted  by  the  erection  of  hands  that 
"the  government  and  patent  should  be  settled  in  New  Eng- 
land," ^  which  was  presumably  the  intention  all  along.  The 
government  and  charter  were  accordingly  removed,  and  hence- 
forth the  whole  government  of  all  the  affairs  of  the  colony  was 
confided  to  persons  and  magistrates  "resident  within  its  own 
bosom." 

The  future  of  the  corporation,  as  well  as  the  colony,  was  thus 
decided.  The  company  at  once  began  "  to  devote  itself  to  the 
work  of  settlement  and  government."  It  laid  aside  commer- 
cial enterprise;  it  no  longer  acted  as  a  land  company:  it  dis- 
posed of  its  territories  to  towns  or  organized  communities  of 
persons;  it  did  not  seek  profit,  but  the  general  well-being  of 
the  colony.     The  township  became  the  pohtical  unit.^ 

The  second  step  by  wliich  the  company  and  the  colony  became 
the  same  thing  was  a  definite  qualification  for  membership. 
Many  of  the  colonists  made  application  to  the  general  court  for 
the  privileges  of  "freemen."  The  court  ordered  that  "to  the 
end  that  the  body  of  the  commons  may  be  preserved  of  honest 
and  good  men  ...  for  time  to  come  no  man  shall  be  admitted 
to  the  freedom  of  this  body  poUtic  but  such  as  are  members 
of  some  of  the  churches  within  the  hmits  of  the  same."  Thus 
the  fundamental  principle  covering  membership  in  the 
colony  became  one  of  social  welfare  instead  of  commercial  or 
financial  profit.  By  these  two  acts  the  character  of  the  organ- 
ization became  completely  changed.  From  a  colonial  com- 
pany hke  Virginia  the  corporation  had  resolved  itself  into  a 
poUtically  organized  colony,  identical  with  the  Puritan  com- 
monwealth. The  increase  of  the  number  of  freemen  and  their 
dispersion  over  areas  too  broad  to  admit  of  their  meeting  in  a 
general  court  for  the  transaction  of  pubHc  affairs  soon  led  as 
in  Virginia  to  the  adoption  of  a  representative  system.  This 
was  the  last  attempt  to  use  the  "London  Company"  as  a  model 

1  Bancroft,  G.,  History  of  the  United  States,  vol.  i,  pp.  224,  231. 

2  Osgood,  H.  L.,  The  Colonial  Corporation    {Pol.  Sci.  Quart.,  vol.  xi, 
p.  502). 


§2i]  Benevolent  Society  31 

for  colonization.     It  had  succeeded  in  founding  colonies,  but 
as  a  political  institution  it  could  not  survive. 

21.   Georgia  as  a  Chartered  Benevolent  Society 

The  only  other  colony  of  actual  settlers  founded  by  a  com- 
pany was  Georgia,  estabHshed  in  the  eighteenth  century.  This 
holds  a  unique  position  among  colonial  enterprises.  As  a 
political  organization  it  had  a  better  start  and  conditions 
more  favorable  to  success  than  Virginia  and  Massachusetts. 
Here  the  original  object  was  the  welfare  of  the  colonists  instead 
of  profit  to  the  incorporators.  In  1732  James  Oglethorpe, 
an  English  philanthropist,  in  order  to  reheve  imprisoned  debtors 
and  persecuted  Protestants,  secured  from  George  II  a  charter 
grant  to  certain  "lands,  countrys  and  territories  situate,  lying 
and  being  in  that  part  of  South  Carolina,  in  America,  which 
lies  from  the  most  northern  part  of  a  stream  or  river,  then 
commonly  called  the  Savanah  all  along  the  sea  coast  to  the 
southward,  into  the  most  southern  stream  .  .  .  the  Alatamaha. 
.  .  . "  ^  By  this  charter  James  Oglethorpe  and  eighteen  others 
and  their  successors  were  made  "a  body  politic  and  corporate, 
in  deed  and  in  name,  by  the  name  of  the  Trustees  for  establish- 
ing the  colony  of  Georgia,  in  America."  ^  This  corporation  was 
eleemosynary  in  character  —  its  government  to  consist  of  a 
President  and  a  Common  Council  of  fourteen  members  later 
to  be  increased  to  twenty-four. 

As  an  inducement  to  settlement  it  was  declared  that  "every 
person  or  persons  who  shall  at  any  time  hereafter  inhabit  or  re- 
side within  our  said  pro\'ince,  shall  be  and  are  hereby  declared  to 
be  free,  and  shall  not  be  subject  to  any  laws,  orders,  statutes  or 
constitutions  which  have  been  heretofore  made  or  enacted,  .  .  . 
for  .  .  .  our  said  province  of  South  Carolina;  .  .  .  that  for- 
ever hereafter  there  shall  be  a  liberty  of  conscience  allowed  in 
the  worship  of  God  .  .  .  except  papists  ...  so  they  be  con- 

1  Bancroft,  G.,  History  of  the  United  States,  vol.  ii,  p.  281;  Poore,  B.  P., 
Charters  and  Constitutions,  p.  373. 

2  Poore,  B.  P.,  Charters  and  Constitutions,  p.  369. 


32  Absolutism  in  America  [§21 

tent  with  the  quiet  and  peaceable  enjoyment  of  the  same,  not 
giving  offence  or  slander  to  the  government,"  and  the  Common 
Council  was  given  power  "to  distribute,  convey  and  set  over 
such  particular  portions  of  land,  tenements  and  hereditaments 
.  .  .  unto  such  of  our  loving  subjects  .  .  .  that  shall  be  will- 
ing to  become  our  subjects  and  live  under  our  allegiance  in  said 
colony  upon  such  terms  and  such  estates  and  upon  such  rents, 
reservations  and  conditions  as  the  same  may  be  granted,  and 
as  the  said  Common  Council  .  .  .  shall  deem  fit  and  proper." 
To  offer  a  liberal  inducement  for  the  acquisition  of  estates  in 
the  colony  it  was  provided  that  only  four  shilUngs  should  be 
charged  per  himdred  acres,  demised,  planted,  or  settled,  "said 
payment  not  to  commence  or  be  made  until  ten  years  after 
such  grant,  demise,  planting  or  settHng."  Besides  this,  no 
grant  could  be  made  "to  any  person  being  a  member  of  the  said 
corporation,  or  to  any  other  person  in  trust  for  the  benefit  of 
any  member  of  said  corporation." 

Bequests  came  from  various  philanthropic  persons  and 
societies,  appropriations  were  made  by  ParUament,  and  every 
aid  given  to  put  the  colony  on  a  successful  footing.  The 
devoted  spirit  of  Oglethorpe  is  shown  on  every  hand.  His 
treatment  of  the  Indians  was  so  just  that  his  reputation  was 
spread  far  and  wide,  and  they  came  many  hundred  miles  to 
form  peace  alliances  and  express  their  good  feeling.  From 
many  lands  those  persecuted  for  conscience  and  financial  mis- 
fortune swelled  the  ranks  of  the  colony. 

Again  the  fallacy  of  government  by  non-residents  and  those 
living  under  different  conditions  of  hfe  from  the  colonists  was 
demonstrated.  The  trustees,  mostly  members  of  the  landed, 
feudal  aristocracy,  did  not  understand  the  economic  condi- 
tions of  the  new  world.  They  made  for  Georgia  such  laws  as 
were  adapted  to  the  tenantry  and  the  feudal  estabHshments 
of  their  English  home.  For  instance,  to  insure  an  estate  even 
to  the  sons  of  the  unthrifty,  to  strengthen  a  frontier  colony, 
the  trustees  granted  estates  only  in  fee-tail.  Here  was  a 
grievance    that    soon    occasioned    just    discontent.    On    this 


§2i]  Benevolent  Society  33 

account  the  colony  continued  to  languish,  until  at  length  the 
trustees,  wearied  with  their  own  labors  and  the  complaints  of 
the  people,  in  June,  1751,  surrendered  the  charter  to  the  Crown. 
Henceforward  it  was  governed  as  a  royal  province,  enjoying 
the  same  Hberties  and  immunities  as  other  royal  provinces.^ 

^  Story,  J.,  Commentaries  on  the  Constitution,  sec.  144. 


CHAPTER  III 

SELF-CONSTITUTED   COLONIES 

22.  References 

Bibliography:    Channing,  Hart  and  Turner,  Guide  (1912),  §§130,  131, 

137-139;  Justin  Winsor,  Narrative  and  Critical  History  of  America  (1884- 
1889),  III,  287-294,  368-384;  J.  A.  Lamed,  Literature  of  American  History 
(1902),  part  iii;  C.  M.  Andrews,  Colonial  Self -Government  (1904),  ch.  xx; 
E.  B.  Greene,  Provincial  America  (1905),  ch.  xix. 

General:  Justin  Winsor,  America  (1884-1889),  III,  269-283;  H.  L. 
Osgood,  American  Colonies  (1904),  I,  109-118;  J.  A.  Doyle,  Puritan  Col- 
onies (1882),  I;  L.  G.  Tyler,  England  in  America  (1904),  ch.  x;  E.  Chan- 
ning, United  States  (1905),  I;  Edward  Eggleston,  Beginners  of  a  Nation 
(1896);  J.  Fiske,  Beginnings  of  New  England  (1889);  J.  G.  Palfrey,  New 
England  (1858),  I;  George  Bancroft,  History  of  the  United  States  (rev.  ed., 
1883-1885),  I;  C.  M.  Andrews,  Colonial  Self-Government  (1904),  ch.  iii; 
E.  B.  Greene,  Provincial  A?nerica  (1905),  chs.  i-v;  H.  C.  Lodge,  English 
Colonies  in  America  (rev.  ed.,  1881),  chs.  xviii-xx. 

Special.- Plymouth:  J.  A.  Goodwin,  The  Pilgrim  Republic  (1888);  Wm. 
Bradford,  History  of  Plymouth  Plantation  (edited  by  W.  T.  Davis,  1908). 
Rhode  Island:  W.  Foster,  Town  Government  in  Rhode  Island  (Johns  Hop- 
kins University,  Studies,  IV,  Nos.  2  and  3);  S.  G.  Arnold,  History  of  the  State 
of  Rhode  Island  (1894),  I;  J.  B.  Richman,  Rhode  Island  (1902).  Connecti- 
cut: B.  Trumbull,  History  of  Connecticut  (1898),  I;  C.  M.  iVndrews,  River 
Towns  of  Connecticut  (Johns  Hopkins  University,  Studies,  VII,  Nos.  7-9); 
A.  Johnston,  Genesis  of  a  New  England  State  (Ibid.,  ser.  I,  No.  11).  New 
Haven:  C.  H.  Levermore,  Republic  of  New  Haven  (1886);  E.  E.  Atwater, 
History  of  the  Colony  of  New  Haven  (1881). 

23.  The  Plymouth  Compact 
Essays  in  colonial  organization  of  three  general  t>'pes  have 
been  described;  viz.,  the  palatinate,  the  pure  monarchy,  and 
the  chartered  company.  A  fourth  form  of  experiment  in 
colonial  government,  the  voluntary  association,  was  largely 
the  result  of  accident.  The  adventurers  who  settled  at  Plym- 
outh, in  1620,  had  a  patent  to  lands  m  Virginia  under  the 
London  Company  charter  grant.  In  1620  when  they  set  out 
in  the  Mayflower  for  their  new  home,  their  intention  was  to 


§  23l  Plymouth  Compact  35 

settle  in  territory  over  which  government  had  already  been 
established;  hence  no  provision  was  made  for  the  exercise  of 
political  powers  other  than  the  instructions  of  the  London 
Council.  Arriving  off  the  New  England  coast  at  the  begin- 
ning of  the  winter,  compelled  by  storm,  or  misguided  by  their 
Dutch  pilot,  they  put  in  at  Cape  Cod  for  shelter,  and  near  there 
they  decided  to  remain.  In  162 1  they  obtained  a  grant  from 
the  Coimcil  of  New  England,  but  that  body  was  inoperative 
and  the  grant  was  never  recognized  by  the  EngHsh  govern- 
ment. They  were  not  within  the  jurisdiction  of  the  London 
Company  and  where  they  located  there  was  no  legal  sanction 
for  control  of  individuals.  Certain  of  the  contract  sers^ants 
threatened  to  take  advantage  of  this  fact.  To  preserve  order, 
some  form  of  political  organization  had  to  be  effected  at  once. 
These  circumstances  gave  rise  to  the  independent,  voluntary 
association  as  an  instrument  of  colonization.  November  11, 
1620,  while  yet  on  shipboard,  the  undertakers  of  the  enter- 
prise organized  themselves  into  a  body  politic  by  the  following 
compact.^ 

"In  the  Name  of  God,  Amen:  We,  whose  names  are  under- 
written, the  Loyal  Subjects  of  our  dread  Sovereign  Lord  King 
James,  by  the  Grace  of  God,  of  Great  Britain,  France,  and 
Ireland,  King  Defender  of  the  Faith,  ETC.,  Having  undertaken, 
for  the  Glory  of  God,  and  Advancement  of  the  Christian  Faith 
and  the  Honor  of  our  King  and  Country,  a  Voyage  to  plant 
the  first  Colony  in  the  northern  Parts  of  Virginia;  Do  by  these 
Presents,  solemnly  and  mutually,  in  the  Presence  of  God  and 
one  another,  covenant  and  combine  ourselves  together  into  a 
civil  Body  PoHtick,  for  our  better  Ordering  and  Preservation, 
and  Furtherance  of  the  Ends  aforesaid;  And,  by  Virtue  hereof 
do  enact,  constitute,  and  frame  such  just  and  equal  Laws, 
Ordinances,  Acts,  Constitutions  and  Officers,  from  time  to 
time,  as  shall  be  thought  most  meet  and  convenient  for  the 
general  Good  of  the  Colony;  unto  which  we  promise  all  due 
Submission  and  Obedience." 

1  Poore,  B.  P.,  Charters  and  Conslit nitons,  p.  931. 


36  Self-Constituted  Colonies  [§  24 

24.  Plymouth  Representative  Government 

By  later  substantive  enactment  the  supreme  legislative  power 
resided  in  and  was  exercised  by  the  whole  body  of  male  inhabi- 
tants who  were  church  members.  The  executive  and  adminis- 
trative oflScers  consisted  of  a  governor,  elected  annually,  and 
one  assistant.  The  number  of  assistants  was  increased  to  five 
and  later  to  seven,^  but  the  people  as  a  body  continued  to  exer- 
cise the  supreme  law-making  power  for  eighteen  years.  A 
representative  system  then  came  about  as  the  result  of  colonial 
expansion  and  the  adaptation  of  political  organization  to  the 
needs  of  the  people.  Other  settlements  sprang  up  aroimd 
the  town  of  New  Plymouth.  Some  of  the  settlers  moved  out 
to  Duxbury  ^  and  established  a  township  there;  others  went  to 
Scituate,^  already  a  township,  but  subject  m  some  degree  to 
Plymouth.  In  1636  it  was  thought  expedient  to  revise  and 
codify  the  laws  of  the  colony,  an4  two  representatives  from 
the  township  of  Scituate,  two  from  Duxbury,  and  four  from 
Plymouth  met  with  the  court  to  put  the  law  in  convenient 
form.*  The  people  in  the  outlying  tOAvns  found  it  inconvenient 
to  come  to  Plymouth  to  attend  all  the  meetings.  Therefore, 
in  November,  1636,  it  was  decided  to  hold  separate  meetings 
for  purposes  of  the  election  of  officers,  to  which  the  electors 
might  send  proxies.  But  still  it  was  a  finable  offence  for  a 
freeman  to  be  absent  from  the  other  meetings  of  the  general 
court  of  assembly.  At  one  meeting  in  1636,  sixteen  freemen 
were  fined  for  non-attendance.^  This  system  was  clumsy  and 
gave  way  in  1638  to  a  genuine  representative  system.  The 
primary  assembly  remained  in  theory,  but  in  practice  it  met 
only  as  an  electorate. 

With  no  authority  from  without,  either  for  the  occupa- 
tion of  territory  or  the  exercise  of.  poHtical  powers,  the  Puri- 

1  Plymouth  Laws,  Hazen's  Col.,  vol.  i,  pp.  404,  406,  408,  411,  412,  417. 

'  Pljonouth  Laws,  Hazen's  Col.,  vol.  i,  p.  62. 

'  Record,  vol.  i,  p.  44. 

<  Record,  vol.  xi,  p.  6.  ^  Record,  vol.  i,  p.  104. 


§2sl  Fundamental  Orders  37 

tans  established  themselves  in  a  wilderness.  Sanction  was 
given  to  local  ordinances  by  social  compact  —  an  agreement  of 
self-government.  Conflict  was  avoided  and  a  state  was  estab- 
lished —  a  state  built  by  their  own  hands  and  it  continued 
to  exercise  its  powers  without  incorporation  or  coming  under 
power  of  the  Crown  till  it  was  finally  absorbed  by  the  Massa- 
chusetts Bay  Colony  in  1692,  when  the  two  colonies  were 
organized  as  the  Royal  Province  of  Massachusetts. 

26.  Fundamental  Orders  of  Connecticut 

The  successful  experiment  at  New  Plymouth  was  repeated 
fourteen  years  later  in  the  Connecticut  Valley.  This  region  had 
been  prospected  by  Oldham  and  Hall  in  the  interest  of  trade 
with  the  Indians,  and  in  1633  a  few  Plymouth  people  opened 
a  trading  post  at  Windsor.  An  agricultural  settlement  was 
made  at  Wethersfield  in  1634,  and  Windsor  and  Hartford  in 
1635  were  the  nuclei  of  two  other  settlements  made  by  freemen 
of  Massachusetts  Bay.  Before  estabUshing  themselves  the 
agricultural  settlers  obtained  Ucense  from  and  were  at  first 
u;nder  the  jurisdiction  of  that  colony.  During  the  first  year 
they  were  governed  by  officers  appointed  by  the  Massachusetts 
Bay  court.  As  their  commissions  were  not  renewed,  the 
inhabitants  organized  themselves  into  independent  towns  and 
thereafter  managed  their  own  affairs.^ 

The  first  form  of  independent  political  organization  in  the 
colony  of  Connecticut  was  that  of  the  town,  or  township. 
After  the  Massachusetts  Bay  colony  relinquished  control, 
these  local  political  units  constituted  for  a  short  time  in  and 
of  themselves  the  sovereign  authority  over  their  various  mem- 
bers —  an  authority  exercised  by  the  people  organized  in  two 
meetings  as  a  democracy.  Common  necessity  and  common 
interest  brought  these  various  towns  together.  There  was  a 
common  necessity  of  maintaining  order  wthin  —  of  marking 
out  their  several  jurisdictions  and  avoiding  conflict.    There 

^  Andrews,  Charles  M.,  The  Beginnings  of  the  Connecticut  Towns  (Am. 
Acad,  of  Pol.  Sci..  Annals,  vol.  i,  pp.  165  et  scq). 

1-  _    i 


38  Self- Constituted  Colonies  [§25 

was  a  common  interest  in  protection  against  the  hostile  Pequots 
from  without.  All  these  circumstances  taught  them  the  ad- 
vantage of  union.  The  joint  meetings,  at  first  in  the  nature  of 
conferences  and  temporary  agreements,  soon  matured  into  a 
central  governmental  structure.  May  i,  1637,  is  assigned  as 
the  natal  day  of  the  Connecticut  colony.^ 

The  "Generall  Corte"  thus  formed,  however,  was  only  a 
provisional  government.  On  January  14,  1639,  the  colony 
adopted  a  formal  constitution  —  the  "Fundamental  Orders," 
a  government  of  their  own  organization,  based  on  social  com- 
pact, in  which  neither  King,  ParUament,  home  corporation  nor 
proprietary  lord  had  a  place  —  a  true  repubUc.  As  the  "agree- 
ment between  the  settlers  at  New  Plymouth"  made  on  board 
the  Mayflower  was  the  first  fundamental  compact,  making 
authoritative  provisions  for  government  by  voluntary  agreement 
among  the  members  of  society  to  be  governed,  so  this  may  be 
said  to  be  the  first  written  constitution,  the  first  clearly  formu- 
lated governmental  structure,  based  on  social  compact.  Its 
preamble  recites: 

"  Forasmuch  as  it  hath  pleased  the  Almighty  God  by  the  wise 
disposition  of  his  diuyne  Pruidence  so  to  Order  and  dispose  of 
things  that  we  the  Inhabitants  and  Residents  of  Windsor, 
Harteford  and  Wethersfield  are  now  co-habiting  and  dwelHng 
in  and  vppon  the  River  of  Conectecotte  and  the  Lands  there- 
unto adioyneing;  and  well  knowing  where  a  people  are  gathered . 
togather  the  word  of  God  requires  that  to  mayntayne  the  peace 
and  vnion  of  such  a  people  there  should  be  an  orderly  and  decent 
Gouef»ment  established  according  to  God,  to  order  and  dispose 
of  the  affayres  of  the  people  at  all  seasons  as  occation  may 
require;  doe  therefore  assotiate  and  conioyne  ourselues  to  be 
as  one  PubHke  State  or  Commonwealth."  ^ 

The  constitution  then  makes  specific  pro\asion  for  the  struc- 
ture of  the  body  politic  and  the  exercise  of  its  functions:  for 
two  general  assembHes  or  courts  a  year;   for  the  election  of 

1  Johnston,  A.,  Genesis  of  New  England  States,  p.  14- 

2  Poore,  B.  P.,  Charters  and  Constitutions,  vol.  i,  p.  249. 


§  26]  Union  of  Towns  39 

the  governor,  magistrates,  and  deputies,  and  the  manner  of 
conducting  elections,  for  the  qualifications  of  ofl5cers  and  elec- 
tors, the  powers  of  the  various  departments,  etc.  Section  10 
is  most  significant  in  its  constitutional  provisions: 

"It  is  Ordered,  sentenced  and  decreed  that  euery  General 
Courte,  except  such  as  through  neglecte  of  the  Gouemor  and 
the  greatest  prte  of  Magestrats  the  Freemen  themselves  doe 
call,  shall  consist  of  the  Gouernor,  or  some  one  chosen  to  moder- 
ate the  Court  and  4  other  Magistrats  at  lest,  with  the  mayor 
prte  of  the  deputyes  of  the  severall  Townes  legally  chosen ;  and 
in  case  the  Freemen  or  mayor  prte  of  the  through  neglect  or 
refussal  of  the  Gouernor  and  mayor  prte  of  the  magistrats, 
shall  call  a  Courte,  yt  shall  consist  of  the  mayor  prte  of  Free- 
men that  are  present  or  their  depuytes,  wth  a  Moderator  chosen 
by  the;  in  wch  said  Generall  Courts  shall  consist  the  supreme 
power  of  the  Comonwealth,  and  they  only  shall  haue  power  to 
make  laws,  or  repeale  the,  to  grant  leuyes,  to  admitt  of  Free- 
men, dispose  of  lands  vndisposed  of,  to  seuerall  Townes  or 
prsons,  and  also  haue  power  to  call  ether  Courte  or  Magestrate 
or  any  other  prson  whatsoeuer  into  question  for  any  misdemean- 
our, and  may  for  just  causes  displace  or  deale  utherwise  accord- 
ing to  the  nature  of  the  offence;  and  also  may  deale  in  any  other 
matter  that  concerns  the  good  of  this  comonwelth;  excepte 
election  of  Magestrats  wch  shall  be  done  by  the  whole  boddy 
of  Freemen."  ^ 

This  constitution  served  them  till  1662,  when  the  New  Haven 
and  Connecticut  colonies  were  united  under  one  government, 
the  basis  of  that  now  in  operation  in  that  state. 

26.   Union  of  Towns  in  Rhode  Island 

Following  Connecticut,  Rhode  Island  next  assumes  the  role 
of  a  self-made  state,  and  worked  out  a  government  almost  wholly 
reflecting  its  own  immediate  environment.  And  it  was  nearly 
free  from  all  extraneous  forces.  This  colony  was  neither  pre- 
viously planned  nor  planted;  it  simply  grew.  It  had  no  guid- 
'  Poore,  B.  P.,  Charters  and  Constilulions,  p.  251. 


40  Self-Constituted  Colonies  [§  26 

ing  home  government,  no  corporation  as  an  organized  centre, 
no  founder.     It  was  in  truth  a  voluntary  association.^ 

In  January,  1636,  Roger  Williams  and  about  twenty  others 
left  Salem  that  they  might  avoid  what  they  thought  the  harsh- 
ness of  religious  law  and  opinion,  and  estabhshed  a  plantation 
on  Narragansett  Bay.^  From  January  till  August  20,  next, 
"the  masters  of  families  had  ordinarily  met  once  a  fortnight 
and  consulted  about  their  common  peace,  watch  and  plant- 
ing." '  At  this  time  a  formal  written  agreement  was  made 
which  was  signed  by  thirteen  newcomers  and  which  set  forth 
in  the  form  of  an  oath  of  allegiance  the  authority  claimed  by  the 
people  in  their  assembUes.  "This  agreement  went  into  imme- 
diate operation  and  constituted  the  town  government  for 
several  years."  ^  The  government  was  at  first  a  pure  democracy 
—  not  an  aristocracy,  in  which  certain  chief  members  of  the 
community  assumed  the  authority,  not  even  a  representative 
repubUc,  in  which  the  interests  of  all  were  subserved  by  the 
delegation  of  actual  legislation  to  a  portion  of  their  number. 
There  was  no  selection  and  there  was  no  delegation.^  Not 
imtil  1640  did  they  reach  the  point  of  a  regular  election  of  town 
officers  and  "agree  for  the  town  to  choose  the  various  officers 
required." 

Providence  having  grown  and  prospered,  other  towns  were 
estabhshed  —  Portsmouth  in  1638  and  Newport  in  1639. 
They  were  independent  communities,  purely  democratic  in  their 
government,  making  their  owti  laws,  administering  their  own 
justice.^ 

In  1640  Portsmouth  and  Newport  coalesced.''  There  was 
great  strife  between  these  towns  on  the  one  hand  and  Providence 
and  Warwick  on  the  other.    The  twofold  danger  of  being 

1  Foster,  William  Eaton,  Town  Govt,  in  R.  I.,  p.  7. 
^  Foster,  William  Eaton,  Town  Govt,  in  R.  I.,  p.  8. 
'  Letter  of  Williams  to  Winthrop,  Narragansett  Club  Pap.  VI.  4. 

*  Staple,  Annals,  p.  44. 

'  Foster,  William  Eaton,  Town  Govt,  in  R.  I.,  p.  16. 

*  Foster,  William  Eaton,  Town  Govt,  in  R.  I.,  p.  10. 

^  Foster,  William  Eaton,  Tovm  Govt,  in  R.  I.,  pp.  17,  18; 


§26]  Union  of  Towns  41 

swallowed  up  by  the  stronger  jurisdiction  of  Massachusetts, 
and  of  being  torn  by  internal  disorders,  drove  them  into  political 
union.  To  secure  a  surer  foundation,  both  of  title  and  gov- 
ernment, Roger  Williams,  in  1643,  procured  a  charter  from 
the  Commonwealth  of  England  which  among  grants  of  poHt- 
ical  freedom  to  American  colonies  takes  first  rank.^  After 
reciting  the  facts  of  settlement,  of  the  necessity  of  protectmg 
the  plantations,  of  services  rendered,  of  the  purchase  of 
land  from  the  Indians,  and  of  their  desire  for  a  "Free 
Charter  of  Civil  Incorporation  and  Government,"  the  charter 
provides: 

"In  due  Consideration  of  the  said  Premises,  .  .  .  out  of  a 
desire  to  encourage  the  good  Beginnings  of  the  said  Planters, 
Do,  by  the  authority  of  the  aforesaid  Ordinance  of  the  Lords 
and  Commons,  give,  grant,  and  confirm,  to  the  aforesaid  In- 
habitants of  the  Towns  of  Providence,  Portsmouth  and  Newport, 
a  free  and  absolute  Charter  of  Incorporation,  .  .  .  Together 
with  full  Power  and  Authority  to  rule  themselves,  and  such 
others  as  shall  hereafter  inhabit  within  any  Part  of  the  said 
Tract  of  land,  by  such  a  Form  of  Civil  Government,  as  by  volun- 
tary consent  of  all,  or  the  greater  Part  of  them  they  shall  find 
most  suitable  to  their  Estate  and  Condition;  and  for  that  End, 
to  make  and  ordain  such  civil  Laws  and  Constitutions,  .  .  . 
as  they,  or  a  great  Part  of  them,  shall  by  free  Consent  agree 
unto."  2 

By  this  grant  the  right  to  govern  by  common  consent  and 
according  to  their  own  free  constitution  was  secured,  and  in 
1647  the  freemen  of  these  towns  met  in  general  assembly  and 
organized  a  central  government  for  the  colony  of  Rhode 
Island. 

In  this  "common  government,"  however,  the  people  did  not 
part  with  the  law-making  function.  The  colonial  legislature, 
created  by  "the  code"  of  1647,  consisting  of  a  president,  eight 
assistants,  and  twenty-four  commissioners,  had  no  power  to 

1  Poore,  B.  P.,  Charters  and  Constitutions,  p.  1594. 

2  Poore,  B.  P.,  Charters  and  Constitutions,  p.  1595. 


42  Self-Constituted  Colonies  [§  26 

originate  legislation.  The  laws  were  first  proposed  and  dis- 
cussed in  the  towns.  When  all  four  of  the  towns,  each  by  itself, 
had  favorably  considered  and  acted  on  the  proposed  law  it  was 
to  be  passed  on  by  the  General  Assembly,  whose  action  was 
simply  a  final  ruhng  upon  it.  "Thus,"  says  Arnold,  "the  laws 
emanated  directly  from  the  people."  ^ 

In  1663,  by  a  formal  charter,  the  General  Assembly  was  given 
power  to  originate  laws  and  was  invested  with  authority  "from 
tyme  to  tyme  to  make,  ordeyne,  constitute  or  repeal  such  laws, 
statutes,  orders  and  ordinances,  formes  and  ceremonies  of 
government  and  magistracyes  as  to  them  shall  seem  meet  for 
the  good  and  welfare  of  the  sayd  company  and  ffor  the 
government  of  the  people."  ^ 

Yet  so  apprehensive  were  the  towns  of  any  tendency  to 
drift  away  from  "the  people"  that  the  election  of  delegates  to 
this  body  was  to  recur  as  often  as  once  in  six  months.  For  no 
longer  time  were  the  towns  willing  to  entrust  the  management 
of  their  affairs  to  the  body  which  they  themselves  had  created. 
"Another  feature  of  no  less  importance  in  this  connection  is 
the  attempt,  made  with  great  determination  and  persistency,  to 
connect  this  semi-annual  session  of  the  colonial  government 
as  really  and  fully  as  possible  with  the  actual,  individual,  un- 
delegated suffrages  of  every  citizen  of  every  town.  At  the 
outset,  in  so  small  a  colony  as  this,  it  was  possible;  and  twice 
a  year,  therefore,  in  May  and  October,  the  citizens  of  the 
whole  colony  —  from  Pro\idence,  Warwick,  Portsmouth,  etc. 
—  assembled  in  person  at  Newport,  and  there  in  solemn 
council  cast  their  votes  for  those  whom  they  decreed  should 
deUberate  for  them  for  the  ensuing  six  months.  This  over, 
they  returned  to  their  homes,  having  inaugurated  the  session, 
so  to  speak,  and  left  it  to  run  of  itseK  for  the  remainder  of  the 
time.  Of  course,  the  natural  tendency  of  any  such  system 
as  this  was  toward  a  gradual  modification,  by  reason  of  the 
inconvenience  and  even  impossibiUty  of  personal  attendance, 

*  Foster,  W.  E.,  Toum  Govt,  in  R.  I.,  p.  20. 

*  Poore,  B.  P.,  Charters  arid  Constitutions,  p.  1598. 


§  27]  Federation  of  Towns  43 

in  many  instances ;  and  this  was  met  by  the  gradual  introduction 
of  the  system  of  proxy  votes.  But  the  votes  of  the  citizens, 
personal  and  proxy,  continued  to  be  cast,  at  Newport,  \mtil 
1760."  1 

27.  Federation  of  Towns  in  New  Haven 

Another  essay  at  government  building  by  voluntary  associa- 
tion was  made  in  1638.  The  first  government  at  New  Haven 
has  been  called  a  theocracy,  having  Davenport  and  Eaton,  as 
the  representatives  of  God,  at  its  head.  Without  doubt  its 
object  was  largely  industrial,  and  from  an  industrial  standpoint 
the  relation  of  its  various  members  was  akin  to  that  of  a  volun- 
tary joint  stock  company.  Though  Davenport  and  Eaton  were 
the  head  of  the  company,  "they  did  not  presume  to  act  without 
bringing  together,  from  time  to  time,  the  free  planters  of  the 
colony  and  with  the  legislation  of  such  democratic  assemblies 
the  records  of  New  Haven  Town  and  Colony  begin."  ^  While 
Httle  is  known  of  the  first  government  of  New  Haven,  we  do 
know  that  the  basis  of  their  pohtical  organization  was  a  com- 
pact made  on  "the  first  day  of  extraordinary  humiUation," 
after  they  came  together,  in  which  they  agreed  that,  "in  all 
pubUque  offices  wch  concerne  ci\ill  order,  as  choyce  of  magis- 
trates and  officers,  making  and  repeahng  of  lawes,  dividing  and 
allotment  of  inheritance,  and  all  things  of  hke  nature,"  they  all 
would  be  ordered  by  the  rules  which  the  Scriptures  hold  forth. 
On  June  4,  1639,  at  Mr.  Robert  Newman's  barn,  "all  the  free 
planters  assembled  together  in  a  generall  meeting  to  consult 
about  settling  ci\ill  Government."  ^ 

On  October  twenty-fifth  of  that  year,  a  committee  of  seven 
men  quahfied  for  the  foundation  work  of  organizing  a  govern- 
ment having  been  appointed,  the  state  took  definite  form.* 
Eaton,  Davenport,  and  five  others  were  the  "seven  pillars" 

1  Foster,  W.  E.,    Town  Govt,  in  R.  I.,  pp.  25-26. 

2  Levermore,  C.  H.,  Republic  of  New  Haven,  p.  13. 
'  Levermore,  C.  H.,  Republic  of  New  Haven,  p.  17. 

*  Levermore,  C.  H.,  Republic  of  New  Haven,  ^.22.  Bancroft  gives  the 
time  as  August.     See  vol.  i,  p.  272. 


44  Self-Constituted  Colonies  [§  27 

for  the  new  house  of  wisdom  in  the  wilderness,  and  those  seven 
met  together  and  abrogating  every  pre\dous  trust  and  admitting 
to  the  court  all  church  members/  estabHshed  a  government 
consisting  of  a  governor,  a  deputy,  magistrates,  and  two  dele- 
gates elected  by  the  freemen  from  each  plantation.  The  legisla- 
ture, consisting  of  all  those  officers,  was  entirely  representative, 
and  was  declared  to  be  "  the  supreme  power,  under  God,  of  this 
independent  dominion"  and  had  authority  "to  declare,  pubUsh 
and  establish  the  laws  of  God,  the  Supreme  Legislator,  and  to 
make  and  repeal  orders  for  smaller  matters  not  particularly  de- 
termined by  the  scriptures,  according  to  the  general  rules  of 
righteousness;  to  order  all  affairs  of  war  and  peace  and  all 
matters  relative  to  the  defending  or  fortif)dng  of  the  country; 
to  receive  and  determine  all  appeals,  civil  and  criminal,  from 
any  inferior  court,  in  which  they  are  to  proceed  according  to 
Scripture  Hght,  and  the  laws  and  orders  agreeing  therewith."  ^ 
Other  towns,  together  with  their  territory,  were  annexed  to 
New  Haven  by  treaty  and  purchase.  "In  this  manner,"  says 
Johnston,  "five  dependent  and  co-ordinate  towns  were  formed. 
The  neighboring  towTis  of  Milford  and  Guilford,  bought  in 
1639,  were  independent  at  first,  but  admitted  by  the  general 
court  in  1643.  Stamford,  bought  in  1640,  was  admitted  in 
1641.  Southhold,  L.I.,  was  bought  in  1640  and  admitted  in 
1649.  Greenwich  was  also  bought  in  1640,  but  the  Dutch 
seduced  the  purchasing  agents  into  making  it  a  Dutch  town."  ' 
Later  the  governments  of  New  Haven  and  Connecticut  were 
federated  vmder  a  common  charter  and  constitution,^  but  up 
to  that  time  New  Haven  was  purely  a  government  by  compact, 
evolved  from  the  community  itself.  There  had  been  no  de- 
pendence on,  no  recognition  of  a  higher  power  except  the 
Supreme  Being.   . 

1  Bancroft,  G.,  History  of  the  United  States,  vol.  i,  p.  272. 

2  Story,  J.,  Constitution,  sec.  85. 

'  Johnston,  Alexander,  The  Genesis  of  a  New  England  State  (Johns 
Hopkins  University,  Studies,  Ser.  I,  No.  11,  pp.  22,  23). 

*  Johnston,  Alexander,  The  Genesis  of  a  New  England  State,  pp.  26,  27;- 
Levermore,  C.  H.,  Republic  of  New  Haven,  p.  156. 


§  28]  Representation  of  Towns  45 

28.  Evolution  of  Representative  Towns 

The  most  significant  self-constituted  government  in  the 
eighteenth  century  is  Vermont.  This  also  belongs  within  the 
category  of  voluntary  association.  For  instance,  the  com- 
munal town  of  Guilford  furnishes  a  parallel  to  the  Rhode 
Island  and  New  Haven  governments  in  so  far  as  it  carried  on 
and  exercised  the  poHtical  functions  of  an  independent  sovereign 
state  for  many  years.^ 

In  the  history  of  the  voluntary  association  we  see  the  modern 
representative  government,  with  all  its  essential  forms  and 
functions,  evolved  from  a  pure  democracy.  Population  in- 
creasing and  territorial  area  enlarging  as  the  demands  of 
society  grew,  it  became  economically  unpossible  for  the  people 
to  meet  in  assembly,  to  make  the  laws  and  carry  on  the  other 
functions  of  government.  With  the  change  in  social  environ- 
ment, poUtical  institutions  had  to  be  recast  so  as  to  subserve 
the  pubUc  welfare.  Pure  democracy  cannot  exist  and  serve 
the  needs  of  government  over  large  areas  of  territory  and 
population.  Representative  government  is  the  successfiil 
device  of  a  free  democratic  society  to  that  end.  The  govern- 
ments estabhshed  by  voluntary  association  were  truly  a  product 
of  environment,  their  growth,  as  well  as  their  ehmination,  an 
adaptation,  operating  under  "the  law  of  advantage." 

This  further  is  to  be  noted;  viz.,  none  of  the  self-constituted, 
governmental  communities  exercised  the  full  functions  of 
territorial  states.  They  always  realized  that  they  held  a  direct 
relation  to  the  government  of  England,  that  they  were  EngUsh 
subjects  in  a  wild  country.  It  was  around  this  common  relation 
that  each  colony  developed  its  autonomy. 

1  See  Dora  Wells,  Tlte  Republic  of  Guilford  (Manuscript  in  Library  of 
University  of  Chicago). 


CHAPTER  IV 

THE  PROPRIETARY  IDEA  IN   COLONIZATION 

29.  References 

Bibliography:  Channing,  Hart  and  Turner,  Guide  (1912),  §§  118,  120, 
123,  124,  125,  126,  140;  Justin  Winsor,  Narrative  and  Critical  History  of 
America  (1884-1889),  III;  J.  W.  Lamed,  Literature  of  American  History 
(1902),  parts  ii,  iii,  and  iv;  C.  M.  Andrews,  Colonial  Self-Government  (1904), 
ch.  xx;  E.  B.  Greene,  Provincial  America  (1905),  ch.  xix. 

General:  Justin  Winsor,  Narrative  and  Critical  History  of  America, 
III,  V;  C.  M.  Andrews,  Colonial  Self -Government  (1904),  chs.  v,  vi,  vii,  viii, 
ix,  X,  xii;  E.  Channing,  United  States  (1908),  II;  R.  Hildreth,  United  States 
(rev.  ed.,  1880-1882),  I  and  II;  G.  Bancroft,  United  States  (rev.  ed.,  1883- 
1885),  I,  part  i,  chs.  viii,  x,  part  ii,  chs.  vii,  ix,  xiv-xvii;  J.  A.  Doyle,  Puri- 
tan Colonies  (1882),  I;   J.  Fiske,  Beginnings  of  New  England  (1889). 

Special.  —  New  Hampshire:  J.  Belknap,  Ncu>  Hampshire  (2d  ed.,  1813). 
New  York:  W.  Smith,  New  York  (ed.  1814);  J.  R.  Broadhead,  New  York 
(1872);  J.  Fiske,  Dutch  and  Quaker  Colonies  (1899),  II.  New  Jersey:  W.  A. 
Whitehead,  East  Nai'  Jersey  under  the  Proprietary  Governments  and  Contri- 
butions to  East  Jersey  History  (1846);  John  Whitehead,  Judicial  and  Civil 
History  of  New  Jersey  (2d  ed.,  1875);  J.  Fiske,  Dutch  and  Quaker  Colonies 
(1899),  II.  Pennsylvania:  W.  R.  Shepherd,  Proprietary  Government  in 
Pennsylvania  (1896);  Isaac  Sharpless,  Quaker  Government  in  Pennsylvania 
(2  vols.,  1898-1899).  IMar>'land:  N.  D.  Mereness,  Maryland  as  a  Propri- 
etary Colony  (1901);  B.  C.  Steiner,  Beginnings  of  Maryland  (Johns  Hopkins 
University,  Studies,  XXI,  Nos.  8-10). 

Feudal  Europe  gave  to  America  a  fifth  type  of  colonial 
establishment  —  the  proprietary,  which  assumed  for  the  in- 
dividual receiving  the  grant  both  ownership  of  the  soil  and  the 
right  to  govern  either  directly  or  by  delegation  to  those  who 
Uved  on  it.  Both  these  rights  v/ere  held  to  be  transferable :  the 
proprietorship  was  conceived  as  a  monopoly  and  all  rights 
imder  it  were  regarded  as  special  privileges. 

30.  Basal  Idea  of  the  Proprietary 
Just  as  the  voluntary  association  described  in  the  last  chapter 
was  the  political  side  of  the  Puritan  congregation  taken  out  of 


§3i]  Maryland  47 

its  setting  in  the  old  world  and  brought  face  to  face  with  the 
necessity  for  maintaining  social  order  in  primitive  conditions, 
so  the  proprietary  was  an  ante-Puritanic  form  —  an  attempt  to 
transfer  a  vanishing  type  of  government  to  the  new  world. 
One  such  grant  was  for  people  of  Roman  CathoHc  faith  perse- 
cuted by  Puritans;  another  for  persons  persecuted  by  CathoHcs 
and  Protestants  ahke.  Both  grants  were  made  by  a  conserva- 
tive court.  After  the  Restoration  the  proprietary  for  a  time 
became  the  accepted  agency  for  new  colonial  enterprises  in 
America.  It  was  not  only  opposed  to  the  Puritan  poHty,  but 
in  the  nature  of  a  reaction  against  Puritanism. 

31.  Proprietorship  of  Maryland 

The  territory  of  Maryland  originally  within  the  London 
Company's  grant,  on  the  withdrawal  of  the  charter  to  that  cor- 
poration reverted  to  the  Crown.  In  the  year  1632  a  patent 
was  granted  to  Lord  Baltimore,  as  lord  proprietor,  with  author- 
ity, by  and  with  the  consent  of  the  freemen  or  their  delegates 
assembled  for  that  purpose,  to  make  all  laws  for  the  province, 
"so  that  such  laws  be  consonant  to  reason  and  not  repugnant 
or  contrary,  but,  as  far  as  conveniently  might  be,  agreeable 
to  the  laws,  statutes,  customs  and  rights  of  the  realm  of 
England."  ^ 

The  first  colony  consisted  of  two  hundred  gentlemen  of 
fortune  and  rank,  with  their  adherents,^  chiefly  Roman  Catholics. 
The  first  legislature,  which  met  in  1634-35,  was  probably  made 
up  of  all  the  freemen  gathered  in  popular  assembly.^  By  1638 
the  colonists  had  so  increased  and  were  so  scattered  on  planta- 
tions and  manorial  estates  that  a  representative  assembly  be- 
came a  necessity.^  The  legislature,  once  set  in  motion,  gradually 
assumed  more  and  more  of  the  legislative  powers  of  government.^ 

1  Poore,  B.  P.,  Charters  and  Constitutions,  p.  8ii. 
^  Story,  J.,  Constitution,  vol.  i,  sec.  io6. 
'  Bancroft,  Geo.,  History  of  the  United  States,  vol.  i,  p.  162. 
*  Story,  J.,  Constitution,  vol.  i,  sec.  107.    See  also  Doyle,  J.  A.,  Va.,  Md., 
and  the  Carolinas,  pp.  296-97. 

'  Doylc,  John  A.,  English  Colonics  in  America,  pp.  313-27. 


48  Proprietary  Colonies  [§  32 

In  1630  it  declared  that  no  taxes  should  be  levied  without  the 
consent  of  the  General  Assembly. '^  The  colony  went  on  with 
some  interruption  during  the  EngUsh  Commonwealth  till  the 
Revolution  of  1688,  when  the  executive  powers  were  seized  by 
the  Crown;  but  in  17 16  it  was  again  restored  to  the  proprietary ,2 
and  there  remained  till  the  Revolution,  though  it  was  always 
limited  by  the  weight  of  the  representative  legislature.  The 
people  of  the  colony,  having  well  gained  control  of  legislation, 
prescribed  the  powers  of  the  proprietor  and  the  administrative 
departments  in  such  a  manner  as  to  make  them  conserve  the 
interests  of  the  colony. 

32.  Proprietorship  of  New  York 

In  1664  Charles  II  granted  unto  his  "dearest  brother  James, 
Duke  of  York"  the  territory  from  the  Delaware  to  the  Connect- 
icut and  also  Maine  "with  all  ye  lands,  islands,  soyles,  rivers, 
harbours,  mines,  minerals,  quarryes,  woods,  marshes,  waters, 
lakes,  fl&shings,  hawking,  hunting  and  fowUng,  and  all  other 
royalltyes,  profi&tts,  commodityes,  and  hereditaments  to  the 
said  severall  islands,  lands  and  premises." 

Grants  of  power  were  also  made  to  the  proprietary  or  his 
assigns  as  follows: 

"And  wee  do  further  of  our  speciall  grace  certaine  knowledge 
and  meeremocon  [motion]  for  us  our  heires,  and  successors  give 
and  grant  unto  our  said  dearest  brother  James  Duke  of  Yorke 
his  heires  deputyes  agents  commissioners  and  assignes  by  these 
presents  ffull  and  absolute  power  and  atthority  to  correct 
punish  pardon  governe  and  rule  all  such  the  subjects  of  US, 
our  heires  and  successors  (as)  from  time  to  time  adventure 
themselves  into  any  of  the  parts  or  places  aforesaid  or  that 
shall  or  doe  at  any  time  hereafter  inhabite  within  the  same 
according  to  such  lawes  orders  ordinances,  direccons  and  in- 
struments as  by  our  said  dearest  brother  or  his  assignes  shall 
be  estabHshed  and  in  defect  thereof  in  cases  of  necessity  accord- 

1  Bacon,  Laws  of  Md.,  1650,  ch.  xxiii. 

2  Bacon,  Laws  of  Md.,  1692,  ch.  i,  1716. 


§  32]  New  York  49 

ing  to  the  good  direccons  of  his  deputyes  commissioners  officers 
and  assignes  respectively  as  well  in  all  cases  and  matters  capital! 
and  criminall  as  civill  both  marine  and  others  soe  alwayes  as 
the  said  statutes  ordinances  and  proceedings  be  not  contrary 
to  but  as  neare  as  conveniently  may  be  agreeable  to  the  lawes 
statutes  and  government  of  this  our  realme  of  England  and 
saving  and  reserving  to  us  our  heires  and  successors  ye  receiving 
hearing  and  determining  of  the  appeal  or  appeales  of  all  or  any 
person  or  persons,  of  in  or  belonging  to  ye  territoryes  or  islands 
aforesaid  in  or  touching  any  judgment  or  sentence  to  be  there 
made  or  given."  ^  The  usual  authority  was  also  given  to 
exercise  martial  law  in  case  of  rebelUon,  insurrection  or 
invasion. 

In  June,  1664,  that  part  of  the  territory  subsequently  known 
as  New  Jersey,  was  by  the  Duke  granted  to  Lord  Berkeley  and 
Sir  George  Carteret.  In  1682  the  Duke  released  his  claim  to 
Delaware  to  WilHam  Penn.  Maine  passed  to  Massachusetts  in 
1686. 

In  the  wars  between  England  and  Holland  from  1665  to  1674 
the  title  to  New  York  was  confirmed  to  the  EngHsh  by  the 
treaty  of  Breda,  1667;  it  was  again  retaken  by  the  Dutch,  but 
restored  to  the  Enghsh  by  the  treaty  of  Westminster  in  1674, 
and  a  new  grant  was  then  made  by  Charles  II  to  the  Duke  of 
York  confirming  his  proprietary  rights;  James  thus  ruled  the 
province  till  he  came  to  the  throne  of  England  in  1685,  when 
it  became  a  Crown  province. 

When  the  Duke  established  his  government  in  New  York  he 
found  there  a  government  already  in  operation.^  Although 
beginning  as  a  monopoly  enjoyed  by  comparatively  few,  the 
government  under  the  Dutch  had  become,  in  a  measure,  repre- 
sentative. He,  however,  refused  to  estabUsh  a  representative 
assembly,  despite  the  constant  appeal  for  the  same  by  the 
EngUsh  towns  on  Long  Island,  till   1682,  when  the  governor 

^  Poore,  B.  P.,  Charters  and  Constiliiiions,  p.  784. 

^  Elting,  Irving,  Dutch  Village  Commimitics  on  the  Hudson  River  (Johns 
Hopkins  University,  Studies,  1886,  IV,  pp.  19  et  seq.) 

S 


50  Proprietary  Colonies  [§  33 

was  authorized  to  call  an  assembly,  with  power  to  make  laws 
for  the  general  regulation  of  the  state  subject  to  the  ratification 
of  the  proprietary.  In  the  EngHsh  Revolution  of  16S8,  which 
deprived  James  II  of  his  Crown,  the  people  took  sides  with  the 
Prince  of  Orange  and  were  deemed  to  have  the  privileges  of  his 
subjects.  Subsequently,  in  i6gi,  an  assembly  framed  a  consti- 
tution which  provided  that  the  supreme  legislative  power  should 
forever  reside  in  a  governor,  a  council,  appointed  by  the  Crown, 
and  representatives  of  the  people  convened  in  general  assembly.^ 

33.  Proprietorship  of  New  Jersey 

New  Jersey  was  a  part  of  the  territory  granted  to  the  Duke 
of  York  and  by  him  in  turn,  June,  1664,  granted  to  Lord  Berkeley 
and  Sir  George  Carteret,  with  all  of  the  rights,  royalties,  and 
powers  of  government  which  he  possessed.  In  1664  these 
proprietors  agreed  upon  a  constitution  of  government  "which 
was  so  much  relished  that  the  Eastern  part  soon  obtained  a 
considerable  population."  The  governmental  structure  con- 
sisted of  a  governor  and  council,  with  appointing  power,  and  a 
general  assembly,  composed  of  the  governor,  council  and  deputies 
chosen  by  the  people.  This  general  assembly  had  full  power 
to  make  laws  for  the  government  of  the  province  "so  that  the 
same  be  consonant  with  reason  and  as  near  as  may  be  con- 
veniently agreeable  to  the  laws  and  customs  of  his  Majesty's 
realm  of  England,"  to  constitute  courts,  to  levy  taxes,  to  erect 
manors  and  forts,  etc.  Although  the  territory  and  government 
were  divided  between  the  proprietors  (1676),  and  the  proprietary 
interests  later  were  transferred  by  assignment,  the  form  of 
government  remained  alm.ost  the  same  till  surrendered  to  Queen 
Anne  (1702),  when  it  was  again  united  in  one  province.  The 
chief  executive  and  administrative  functions  were  placed  in  the 
hands  of  a  governor  and  council  appointed  by  the  Crown,  the 
legislative  functions  remaining  with  a  general  assembly  of  repre- 
sentatives, with  power  to  make  all  laws  and  ordinances  for  the 
welfare  of  the  people. 

1  Van  Schaack,  Laws,  1691. 


§§  34, 35, 36]  New  Hampshire  5 1 

34.  Proprietorship  of  Pennsylvania 

The  history  of  Pennsylvania  begins  with  a  grant  made  in 

1 68 1  by  Charles  II  to  William  Penn  as  proprietor,  who  was 

authorized  "to  make  all  laws  for  raising  money  and  other 

purposes  with  the  consent  of  the  freemen  of  the  country  or  their 

deputies  assembled  for  that  purpose."     In  1682  Penn  published 

a  ''frame"  which  provided  for  a  government  composed  of  a 

governor,   council,   and  assembly;  he  renewed  it  with  slight 

modifications  in  1683  and  1696,    The  proprietor  established  a 

representative  legislature  made  up  of  delegates  chosen  by  the 

freemen  of  the  counties.     The  subsequent  changes  were  in  the 

nature  of  an  enlargement  of  the  powers  of  the  people  and  their 

representatives  and  a  reduction  of  those  of  the  proprietor  and 

his  appomtees,  until,  though  proprietary  in  form,  the  colony 

enjoyed  the  same  liberties  as  did  other  colonies  classed  as  royal 

provinces. 

35.  Proprietorship  of  Delaware 

Delaware  needs  no  further  account  here  than  that  its  territory 
was  ceded  to  Penn  by  the  Duke  of  York  and  that  its  govern- 
ment was  exercised  under  the  same  proprietary  as  that  of 
Pennsylvania,  with  practically  the  same  powers  and  modifica- 
tions. It  was  pecuUar  in  this :  that  it  was  a  political  jurisdiction 
that  has  survived  and  that  had  its  origin  in  a  transfer  between 
proprietors,  who  in  turn  had  their  titles  from  the  King, 

36.  Proprietorship  of  New  Hampshire 

The  institutional  beginning  of  the  New  Hampshire  colony 
(1629)  is  to  be  found  in  a  proprietary  grant  to  Captain  John 
Mason,  by  which  he  was  to  "estabUsh  such  Government  in  the 
said  portion  of  Lands  and  Islands  granted  unto  him,  ...  as 
shall  be  agreeable,  as  near  as  may  be,  to  the  Laws  and  Customs 
of  the  Realm  of  England."^  In  1635  a  grant  was  made  to 
Mason,  by  which  the  land  with  all  its  uses,  and  all  "Royaltys, 

1  Poore,  B.  P.,  Charters  and  Consiiiutions,  p.  1272. 


52  Proprietary  Colonies  [§37 

jurisdictions,  priviledges,  preheminences,  profitts,  comoditys 
and  haereditaments  whatsoever,  .  .  .  with  power  of  judicature 
in  all  causes  and  matters  whatsoever,  as  well  criminal,  capitall, 
and  civil,"  were  ceded. ^  A  controversy  arose  over  the  bound- 
aries, upon  which  the  charter  came  before  the  King  in  council, 
and  in  1679  the  government  of  New  Hampshire  passed  over 
to  the  Crown  and  there  was  established  a  form  by  which  the 
executive  power  was  vested  in  a  president  and  council  appointed 
by  the  Crown,  the  administration  of  justice  was  conducted 
according  to  "ye  forms  of  proceedings  in  such  cases  and  ye 
judgment  thereupon  ...  be  as  consonant  and  agreeable  to  ye 
Laws  and  Statutes  of  this  Our  Realm  of  England  as  ye  present 
state  and  condition  of  our  subjects  inhabiting  within  ye  hmits 
aforesaid  .  .  .  will  admit,"  and  the  legislative  power  was  given 
to  an  Assembly  composed  of  the  president,  council  and  repre- 
sentatives chosen  by  the  towns.^  The  Assembly  made  up  as 
above  set  forth,  was  authorized  to  levy  taxes  and  make  all  laws 
for  the  interest  of  the  province.  This  form  of  government 
was  continued  down  to  the  Revolution. 

37.  Proprietorship  of  the  Carolinas 

In  1629  Sir  Robert,  afterwards  Chief  Justice  Heath,  obtained 
from  Charles  I  a  grant  to  the  lands  south  of  Virginia.  His 
object  was  to  divide  the  territory  into  smaller  tracts  and  sublet 
it  to  others  who  were  to  manage  the  details  of  settlement. 
This  should,  however,  not  be  included  as  a  part  of  govern- 
mental history  for  two  reasons:  it  was  merely  a  land  grant,  and 
in  the  end  it  was  a  failure  and  the  grant  was  finally  cancelled. 

The  political  history  of  the  Carolinas  begins  in  the  year  1663, 
when  eight  patentees  obtained  a  grant  to  all  the  lands  between 
the  southern  boundary  of  Virginia  and  the  St.  Mathias  River 
in  Florida.  They  also  were  clothed  with  power  of  sovereignty 
over  the  territory,  making  the  reservation  only  that  the  in- 

1  Poore,  B.  P.,  Charters  and  Constitutions,   pp.  1273-74. 

2  N.  Hampshire  Prov.  Laws,  Ed.  1771,  Commission  of  Chat.,  vol.  ii,  pp.  i, 
et  seq. 


§37l  The  Carolinas  53 

habitants  should  "be  subject  immediately  to  our  Crown  of 
England,  as  depending  thereof  forever."  ^  There  were  settlers 
in  the  territory  at  the  time.  Two  governors  were  eventually 
appointed,  one  over  the  settlements  to  the  north  of  the  Chowan 
River  and  the  other  to  the  south  .^  These  governors  were  to 
have  power  to  appoint  all  officers  except  the  secretary  and 
surveyor,  and  to  make  laws  with  the  consent  of  the  freemen. 

In  1667  the  proprietors  adopted  the  famous  constitution, 
drawn  up  by  John  Locke,  which  attempted  to  set  up  a  govern- 
ment on  the  ancient  feudal  basis.^  The  power  in  the  state  was 
to  be  a  territorial  aristocracy,  with  the  proprietors  at  its  head, 
the  eldest  of  whom  was  the  Palatine,  with  a  certain  limited  pre- 
eminence. The  seven  below  the  Palatine  were  to  be  the  Chan- 
cellor, Chief  Justice,  Constable,  Admiral,  Treasurer,  High 
Steward,  and  Chamberlain.  The  whole  country  was  to  be 
divided  into  counties,  each  consisting  of  eight  seniories,  eight 
baronies,  and  twenty-four  colonies,  containing  twelve  thousand 
acres  apiece.  Of  these  the  seniories  were  to  pertain  to  the 
proprietors,  the  baronies  to  the  subordinate  nobility,  the  colonies 
to  the  commonalty.  Each  proprietor  was  to  hold  one  seniory 
in  every  county.  The  nobility  below  the  proprietors,  all  nomi- 
nated by  the  proprietors,  was  to  consist  of  landgraves,  one  from 
each  county,  holding  four  baronies  each,  and  caciques,  two  for 
every  county,  holding  two  baronies  each.  The  executive  and 
judicial  power  was  vested  in  the  proprietors,  each  of  whom  was 
to  be  an  officer  of  state.  Each  of  the  lords  of  a  seniory  was  to 
be  assisted  by  a  court,  and  the  whole  body  of  eight  proprietors 
was  to  sit  under  the  title  of  the  Palatine's  court.  Lords  of 
manors  were  empowered  to  hold  leet-courts.  The  Grand 
Council  was  to  consist  of  the  whole  body  of  proprietors  and 
Councillors  from  the  various  courts.  The  remaining  legislative 
powers  were  vested  in  a  Parliament,  to  consist  of  all  the  pro- 

^  Poore,  B.  P.,  Charters  and  Constilidions,  p.  1389. 

'  McCrady,  Edward,  South  Carolina  under  the   Proprietary  Government, 

PP-  74-75- 

'  Poore,  B.  P.,  Charters  and  Constitutions,  p.  1397. 


54  Proprietary  Colonies  [§  37 

prietors  or  their  deputies,  the  landgraves,  caciques,  and  repre- 
sentatives of  the  freeholders.^ 

One  can  scarcely  imagine  a  more  arbitrary  plan  of  govern- 
ment. The  Crown  having  assumed  sovereignty  over  the 
territory,  granted  jurisdiction  to  his  favorites.  These  favorites 
then  set  about  to  secure  their  power  by  all  the  fictions  of  abso- 
lutism known  to  government  —  feudal  tenure,  hierarchy, 
nobiUty,  on  the  one  hand;  tenantry,  subordination,  slavery, 
on  the  other;  and  in  order  to  train  the  conscience  to  the  support 
of  these  institutions,  an  established  church  under  the  control 
of  the  nobiUty. 

The  influence  of  such  a  regime  appears  from  the  fact  that  in 
certain  places  the  slave  population  from  the  beginning  was 
twice  as  large  as  the  free,  and  of  the  free  but  a  fraction  were 
freeholders.  Not  only  was  the  negro  used  as  the  basis  of  a 
servile  industrial  population,  but  the  Indians,  natives  of  the 
soil,  were  pressed  into  service.  "The  Indian,"  says  Doyle, 
"was  kidnapped  and  sold,  sometimes  to  work  on  what  had  once 
been  his  own  soil,  sometimes  to  end  his  days  as  an  exile  and 
bondsman  in  the  West  Indies.  As  late  as  1708  the  native 
population  furnished  a  quarter  of  the  whole  body  of  slaves."  ^ 
But  even  these  measures  did  not  give  sufficient  foundation  for 
the  successful  operation  of  Locke's  Constitution  of  government. 

Here  was  elaborated  a  plan,  suited  only  to  a  large  and  densely 
populated  country,  instead  of  a  simple  organization  adapted  to 
colonial  conditions.  It  is  needless  to  say  that  the  scheme  was 
a  failure. 

Each  proprietor  nominated  a  deputy,  while  the  colony  was 
divided  into  four  precincts,  each  of  which,  by  a  temporary 
arrangement,  was  to  return  four  members.  The  proposed  par- 
liament, however,  was  never  held,  and  the  colony  continued  to 
be  governed  by  the  Grand  CouncU  till  popular  pressure  became 
too  strong  to  resist.  The  constant  effort  on  the  part  of  the  pro- 
prietors to  assert  claims  under  the  constitution  which  were 

*  Doyle,  J.  A.,  English  in  America,  pp.  335-37. 

*  Doyle,  J.  A.,  English  in  America,  p.  359. 


§37]  The  Carolinas  ss 

adverse  to  the  interests  of  the  planters  led  to  turmoil  and  revolu- 
tion. Slight  modifications  were  made  in  the  constitution  in 
1670  and  1682  to  no  avail.  In  1698  still  greater  modifications 
were  made  with  a  design  to  bring  it  more  in  harmony  with  the 
needs  of  the  people.  But  the  influence  and  authority  of  the 
proprietors  were  lost.  In  1729  the  proprietary  government, 
such  as  it  had  been,  came  to  an  end.  The  Crown  purchased 
the  proprietary  rights,  and  the  demands  of  the  colonists  were 
satisfied  by  the  establishment  of  a  Crown  colony  government 
with  a  local  representative  system.  Later,  in  1732,  the 
territory  was,  for  convenience,  divided  and  the  two  royal 
governments  of  North  and  South  Carolina  were  established  on 
practically  the  same  basis  as  that  of  the  other  colonies. 


CHAPTER  V 
SUMMARY   OF   COLONIAL   POLITICAL   IDEALS 

38,  References 

Bibliography:  Same  as  for  chs.  ii,  iii,  and  iv. 

General  References:   Same  as  for  chs.  ii,  iii,  and  iv. 

Theory  of  Ownership:  A.  Brown,  Genesis  of  the  United  States  (1890),  I, 
1-28;  G.  Bancroft,  History  of  the  United  States  (rev.  ed.,  1883-1885),  I,  ch. 
i;  J.  A.  Doyle,  England  in  America  (1882),  I,  ch.  iv;  J.  B.  Moore,  Digest 
of  International  Law  (1906),  I,  258-263;  J.  R.  Seeley,  Expansion  of  England 
(1883),  lect.  vii;  L.  G.  Tyler,  England  in  America  (1904),  ch.  i. 

England's  Commercial  Policy:  G.  L.  Beer,  Commercial  Policy  of 
England  toward  the  American  Colonies  (Columbia  College,  Studies,  III,  No. 
2);  Eleanor  L.  Lord,  Industrial  Experiments  in  the  British  Colonies  (Johns 
Hopkins  University,  Studies,  extra  vol.,  XVII);  Edward  Channing,  The 
Navigation  Laws  (Am.  Antiquarian  Soc,  Proceedings,  1890);  W.  J.  Ashley, 
Surveys,  Historical  and  Economic  —  England  and  America,  1 660-1 760 
(1900);  G.  E.  Howard,  Preliminaries  of  the  Revolution  (1905),  ch.  iii;  C.  M. 
Andrews,  Colonial  Self -Government  (1904),  ch.  v;  E.  B.  Greene,  Provincial 
America  (1905),  ch.  vi. 

39.  Predatory  Theory  in  English  Colonization 
Before  the  industrial  revolution  in  England,  welfare  was 
measured  very  largely  in  terms  of  agricultural  wealth  —  that 
is,  in  terms  of  prosperity  of  the  landowner.  Those  who  had 
gained  recognition  by  the  government  were  chiefly  the  landed 
classes.  The  attitude  of  the  government  toward  the  tradesman 
and  the  laborer  still  remained  the  attitude  of  the  conqueror. 
England's  colonial  polity  was  essentially  predatory;  it  laid 
more  stress  on  acquisition  of  territor}^,  assertions  of  sovereignty 
as  a  cloak  for  trade,  than  on  the  social  and  economic  welfare 
in  lands  acquired.  Not  till  well  into  the  nineteenth  century 
did  what  is  commonly  called  the  third  estate  force  the  ruling 
classes  to  recognize  their  claims.  Not  till  sixty  years  after 
England  had  lost  the  thirteen  colonies  and  had  a  second  colonial 
revolution  on  her  hands  in  Canada  did  the  government  awaken 
to  the  necessity  of  adopting  and  maintaining  a  colonial  policy 


§  39]  Predatory  Theory  ^y 

which  would  have  regard  for  the  economic  welfare  of  her  de- 
pendencies. Up  to  that  time  colonial  enterprise  was  considered 
a  highly  specialized  business  launched  under  charters  which 
were  essentially  predatory.  The  dominant  ideal  in  colonization 
was  that  of  making  the  conquered  or  annexed  portions  sub- 
servient to  the  conquering  people. 

The  King  indulged  the  fiction  that,  by  virtue  of  a  few 
voyages  made  by  adventurers,  he  became  the  owner,  and  the 
Crown  of  England  the  rightful  sovereign  over  a  large  part  of 
the  western  continent.  The  Indians  and  all  other  inhabitants 
of  the  western  continent  were  regarded  as  holding  their  ancestral 
estates  not  by  first  right,  but  by  suflferance  or  by  right  of 
occupancy  only.  Why  this  assumption?  Why  its  maintenance 
by  armed  force?  What  was  the  economic  advantage  to  be 
gained?  The  alert,  self-seeking  Englishman  had  learned  of  the 
vast  western  continent,  its  probable  riches,  its  wide  expanse, 
its  primitive  people.  To  him  it  was  a  new  field  to  be  exploited. 
In  order  that  this  might  be  accomplished  without  interference  on 
the  part  of  foreign  neighbors  he  was  desirous  to  cloak  the 
work  with  the  protective  mantle  of  British  sovereignty.  This 
advantage  having  been  gained,  and  the  corresponding  assump- 
tion of  royalty  having  been  granted,  the  King  then  became 
competent,  by  his  ipse  dixit,  to  apportion  the  soil  to  his  subjects 
in  the  same  manner  as  had  William  I  after  the  conquest  of 
England  —  to  grant  special  privileges  and  to  delegate  to  others 
the  exercise  of  sovereign  rights. 

What  more  significant  comment  on  England's  foreign  policy 
than  the  opening  lines  of  Mill's  great  work?  With  all  the 
proverbial  pride  of  an  Englishman  he  announces:  ''Two  cen- 
turies have  elapsed  since  a  few  British  merchants  humbly 
solicited  permission  of  the  Indian  princes  to  traffic  in  their 
dominions.  The  British  power  at  the  present  time  embraces 
nearly  the  whole  of  that  vast  region  which  extends  from  Cape 
Comorin  to  the  Mountains  of  Tibet  and  from  the  Mouths  of 
the  Brahmapootra  to  the  Indus."  ^  These  two  vainglorious 
1  Mill,  The  History  of  British  India,  vol.  i,  p.  i. 


58  Colonial  Ideals  [§39 

sentences  mark  the  beginning  and  the  end  of  the  history  of  one 
of  the  most  perfidious  conquests,  in  the  interests  of  corporate 
commercialism,  that  the  world  has  ever  known. 

Even  after  the  powers  of  government  had  been  shared  by  the 
three  estates,  these  powers  were  still  used  to  further  the  interests 
of  governors.  The  ruling  class  had  broadened  and  to  this  extent 
the  government  was  made  more  representative.  With  the 
three  estates  governing,  as  between  themselves  the  self-interest 
of  each  class  served  as  a  check  on  the  self-interest  of  the  other. 
At  home  neither  absolutism  nor  mihtarism  was  to  be  feared, 
unless  it  might  happen  that  through  the  aid  of  the  army  or  navy 
one  class  mnght  gain  too  much  power  and  prestige  from  its 
predatory  activities  in  foreign  lands.  It  was  abroad,  in  dealing 
with  people  who  were  too  weak  in  material  resources  to  resist, 
that  the  overpowering  desire  for  economic  gain,  which  when 
organized  served  to  safeguard  the  industrial  interests  in  England, 
became  a  motive  to  oppression.  Abroad,  the  proprietary  rights 
and  the  customary  properties  of  others  were  regarded  as  legiti- 
mate prey,  and  all  of  the  energies  of  the  British  state  were  used 
as  an  aid  to  grasping  commercialism.'-  A  long  list  of  events 
might  be  referred  to  as  the  result  of  this  attitude.  One  of  the 
events  of  the  last  century  illustrative  of  this  spirit  is  the 
"opium  war."  Such  were  the  political  aspects  of  commercial 
expansion;  incidentally  this  was  the  inherited  attitude  of  the 
American  people  toward  governments. 

All  this,  however,  in  the  very  nature  of  things  was  to  be  ex- 
pected. At  the  time  of  colonization  in  America,  a  dominant 
absolutism  was  making  its  last  struggle  for  political  supremacy. 
The  Dutch  colony  of  New  York  was  planted  during  the  twelve 
years'  truce;  most  of  the  colonies  were  founded  prior  to  the 
peace  of  Westphalia  in  1648;  the  principle  of  the  separation  of 
powers  was  not  established  in  England  till  1688.  We  may, 
therefore,  look  for  the  same  highly  refined  fictions  of  absolutism 
in  settlements  here  as  prevailed  in  continental  Europe  before 
the  fall  of  Rome.  Some  dreamed  of  gold,  others  of  states  and 
^  See  McCarthy's  History  of  our  Own  Times,  vol.  i,  pp.  25-28. 


§  4o]  Industrial  Motive  59 

empires.  The  Crown  would  make  the  western  world  a  royal 
fief;  those  who  would  attain  their  ends  by  commerce  and 
industry  sought  corporate  charters  and  monopolies;  those  who 
sought  to  satisfy  their  desires  through  the  exercise  of  functions 
of  government  would  be  made  lords  proprietary  "with  free, 
full  and  absolute  power  ...  to  ordayne,  make  and  enact  .  .  . 
any  laws  whatsoever,  hold  courts,  collect  revenues, "  etc. 

40.   Effect  of  the  Industrial  Motive  on  Fictions  of  Government 

But  attempts  to  transplant  these  ideas  to  American  soil 
proved  more  difiicult  than  had  been  anticipated;  there  was 
nothing  here  to  sustain  them.  Nature's  resources  were  unde- 
veloped. There  was  no  industrial  class  upon  which  to  feed. 
Assumptions  of  absolutism  which  rested  on  militarism  could  not 
be  maintained  in  an  untamed  wilderness.  All  of  the  early 
attempts  at  colonization,  therefore,  came  to  naught.  The 
governing  classes  were  compelled  to  adopt  a  form  of  political 
organization  for  the  colonies  which  was  favorable  to  the  in- 
dustrial welfare  of  the  colonists  and  to  discard  their  highly 
wrought  ideals  of  royal  prerogative  and  nobility.  From  the 
nature  of  things  the  purpose  of  colonization  became  industrial; 
the  conditions  of  life  in  the  new  world  were  industrial ;  the  spirit 
of  the  times  was  industrial.  The  environment  of  society  in 
America  was  such  that  none  other  than  a  political  organization 
based  on  ideals  of  general  welfare  could  live. 

Here  in  the  American  colonies,  originally  fashioned  after 
nearly  every  model  which  it  was  conceivable  to  adopt,  we  find 
an  epitome  of  the  development  of  the  modern  state.  Those 
colonies  organized  as  voluntary  associations,  which  were  not 
established  upon  the  basis  of  existing  old  world  institutions, 
being  small,  isolated,  industrial  communities  whose  chief  ad- 
vantage in  organization  was  that  of  controlling  nature  and 
making  it  subservient  to  their  wants,  found  their  economic 
interests  well  served  by  a  purely  democratic  government  in 
which  the  people  came  together,  discussed  matters  of  mutual 
concern,  and  acted  in  such  manner  as  seemed  for  the  highest 


6o  Colonial  Ideals  [§  41 

well-being  of  all.  But  as  these  small  industrial  groups  mul- 
tiplied, as  broader  organization  became  physically  possible, 
common  dangers  and  common  interest  made  it  advantageous 
for  them  to  unite;  and,  uniting,  it  became  necessary  to  recast 
their  institutions  in  such  a  manner  as  to  conserve  the  broader 
welfare  of  a  larger  society.  Adapting  their  poUty  to  the  interests 
of  a  more  niunerous  population  distributed  over  a  wider  area, 
in  many  instances  the  principle  of  a  local  assembly  of  freemen 
was  retained  for  the  management  of  affairs  of  little  constituent 
imits,  the  principle  of  representation  being  established  only  for 
the  central  government.  In  every  case,  however,  the  desire 
for  security  against  the  designs  of  larger  and  more  powerful 
foreign  states  moved  them  to  remain  one  and  all  under  the 
protection  of  English  sovereignty. 

41.   Working  out  of  a  Common  Type  of  Representative  System 

Those  colonies  which  were  at  first  established  under  royal 
charter  grants  foimd  themselves  imder  the  same  political  and 
economic  necessity  of  making  their  polity  adaptable  to  the 
principle  of  general  welfare  as  did  the  voluntary  associations. 
Gradually  the  private  corporation,  as  a  superior,  controlling, 
political  agent,  became  extinct;  the  feudal  organization  was 
modified;  the  proprietary  lord  found  it  necessary  to  adopt  the 
principles  of  representative  self-government,  first  by  giving  way 
to  the  demands  of  the  people,  then  by  yielding  his  executive 
power  to  the  direct  representative  of  the  Crown;  shareholders 
as  proprietors  of  the  joint  stock  company  were  forced  to  turn 
over  the  reins  of  government  to  citizenship  represented  by  an 
electorate.  On  the  one  hand,  therefore,  we  find  the  modern 
industrial  state  developed  from  a  purely  democratic,  self- 
organized,  self -governed,  local,  industrial  community;  on  the 
other  hand  under  similar  social  and  economic  conditions  an 
almost  exactly  similar  type  of  institution  was  evolved  from  the 
establishments  of  monarchy  and  the  pohty  of  conquest.  Both 
of  these  original  types  met  in  the  adoption  of  a  common  form 
of  representative   government,   subservient   to   the   economic 


§42]  Popular  Sovereignty  6i 

interests  of  the  people  — a  form  of  government,  however, 
operated  under  the  protection  of  the  sovereignty  of  Great 
Britain. 

42.  Inevitable  Progress  of  Popular  Sovereignty 

In  countries  where  a  privileged  governing  class  had  been 
estabHshed  by  conquest,  so  little  was  thought  of  common 
welfare  ideals  that  a  whole  people  might  be  plunged  into  war 
because  of  the  personal  pride  of  sovereigns.  Their  dreams  of 
conquest  and  ambition  for  empire  and  other  concepts  of  abso- 
lutism have  played  the  leading  part  in  affairs  of  state.  Indus- 
trial interests  to  an  extent  have  been  lost  sight  of.  Here  in 
America  the  industrial  forces  of  necessity  were  dominant  at 
the  beginning,  and  since  that  time  have  been  the  leading  factors 
in  every  new  pohtical  movement.  Industrial  welfare  having 
been  the  prime  motive  of  our  pohtical  organization  at  the  time 
of  the  estabUshment  of  the  government,  and  its  poHty  being 
based  on  the  general  welfare,  all  assumptions  of  sovereignty 
on  the  part  of  England  which  were  opposed  to  this  interest  were 
resisted.  Finally  the  thirteen  colonies,  having  won  their  inde- 
pendence from  the  absolutism  of  the  British  colonial  pohcy, 
for  the  purpose  of  furthering  their  economic  interests  by  es- 
tablishing for  themselves  a  broader  sovereignty  adjusted  to 
their  economic  well-being,  organized  under  a  federal  constitution 
and  provided  for  the  admission  of  other  states  on  the  same  foot- 
ing. Instead  of  sovereignty  being  held  by  force  of  arms,  m  an 
unresponsive  foreign  monarch  who  received  his  advice  from 
an  unsympathetic  court,  it  was  assumed  by  the  people  whose 
interests  the  powers  of  state  were  organized  to  protect. 

Having  assumed  for  themselves  the  function  of  sovereignty; 
having  established  the  principle  that  all  government  must  rest 
on  the  consent  of  the  governed,  that  sovereignty  consists  in 
the  power  to  determine  what  agency  shall  govern,  what  powers 
and  duties  shaU  be  granted,  and  what  limitations  shall  be  set  up 
for  their  protection,  the  people  as  sovereign  proceeded  to  make 
for  themselves  their  own  charters,  to  incorporate  themselves  for 


62  Colonial  Ideals  [§43 

the  purpose  of  public  business.  In  making  provision  for  the 
adaptation  of  laws  to  economic  and  social  needs,  they  adopted  a 
representative  system.  In  the  struggle  for  supremacy  it  became 
advantageous  for  several  local  political  groups  to  unite.  It 
was  by  broad  co-operation  that  successful  resistance  to  the 
assumptions  of  arbitrary  power  had  been  made  possible.  As 
in  the  conflict  between  the  Netherlands  and  the  Spanish  Empire, 
it  was  by  combining  on  a  poUty  which  made  possible  the  protec- 
tion and  promotion  of  the  welfare  of  a  community,  a  polity 
broad  enough  to  amass  and  maintain  forces  of  great  strength 
without  materially  lowering  the  productivity  of  the  people, 
that  the  assimiptions  and  assertions  of  absolutism  were  over- 
come. In  the  organization  of  American  government  on  a  basis 
of  broad  co-operation,  it  was  found  that  the  popular  assembly 
was  impracticable  for  any  other  than  local  control,  while  imder 
the  social  and  economic  conditions  present  in  the  new  world, 
the  incorporation  of  the  old  world  fictions  of  absolutism  proved 
disastrous.  Representative  government  came  as  a  political 
and  economic  necessity. 

43.   Organization  against  Predatory  Forces  from  Within 

The  crowning  act  of  the  colonial  regime  was  the  estabUsh- 
ment  on  the  western  continent  of  a  broadly  organized  indepen- 
dent political  society.  For  the  first  time  in  the  history  of  the 
world  an  imperial  sovereignty  was  established  without  conquest 
of  the  local  jurisdictions  or  assumptions  of  superiority  by  a 
governing  class.  The  thirteen  states  combined  to  "establish 
justice,  insure  domestic  tranquillity,  provide  for  the  common 
defence,  promote  the  general  welfare,  and  secure  the  blessings  of 
liberty."  Guided  by  the  experience  and  precedents  of  the  past, 
accepting  the  logic  of  their  owm  history,  by  acts  of  self -incorpora- 
tion they  decided  what  agents  they  would  employ;  they  assumed 
the  right  to  select  their  own  ofiicers;  they  executed  through 
these,  their  business  agents,  limited  deeds  of  trust  and  made 
these  deeds  of  trust  (their  constitutions)  revocable  at  will. 
In  order  that  the  acts  of  their  trustees  might  be  subject  to 


§44]  General  Welfare  Agency  63 

frequent  review,  they  limited  the  tenure  of  most  of  them  and 
made  adequate  provision  for  direction  and  control.  The 
people  had  by  armed  force  broken  down  the  institution  which 
had  enabled  a  foreign  predatory  class  to  stand  in  the  way  of 
co-operation  for  what  they  then  thought  to  be  the  highest  wel- 
fare; but  in  doing  so  they  assumed  for  themselves  an  onerous 
task,  viz.,  that  of  protecting  themselves  against  the  predatory 
activities  of  their  own  corporate  agents;  the  officers  through 
whom  popular  will  must  be  expressed  and  by  whom  those 
institutions  designed  for  the  promotion  and  protection  of 
public  welfare  must  be  administered. 

44.  Creation  of  an  Agency  to  Conserve  the  General  Welfare 

From  this  time  on  the  problems  before  the  American  people 
have  been  problems  of  citizenship;  problems  of  an  electorate; 
problems  of  legislative,  judicial,  and  administrative  agencies. 
Prior  to  the  Declaration  of  Independence,  every  demand  for 
the  better  adaptation  of  institutions  to  welfare  had  been  a 
demand  on  the  King;  now  the  sovereign  was  organized  citizen- 
ship; now  demands  for  institutional  change  must  be  translated 
into  terms  of  citizen  need  and  citizen  responsibility.  Prior  to 
that  time  demands  for  better  administration  had  been  demands 
on  the  appointees  of  the  King;  now  administrative  agents, 
whether  chosen  by  one  electorate  or  another,  were  to  be  regarded 
as  trustees  of  the  people;  and  instead  of  appealing  to  a  king, 
demands  for  more  honest,  more  efficient,  and  more  economical 
administration  must  be  submitted  to  the  people  and  be  stated 
in  terms  which  would  set  forth  wherein  there  had  been 
inefficiency,  disregard  for  public  duty,  or  breach  of  trust. 

The  full  import  of  the  change  in  the  form  of  government  was 
not  at  first  appreciated,  in  fact  it  has  not  as  yet  been  fully 
understood.  The  first  years  of  the  new  nation  were  years  of 
unsettled  political  ideals  during  which  government  was  largely 
a  matter  of  local  administration ;  general  protective  and  promo- 
tive measures  rested  largely  on  public  appreciation  of  common 
national  needs.     During  the  Confederacy  from   1776  to  1789 


64  Colonial  Ideals  [§  44 

the  theory  was  accepted  that  sovereignty  belonged  to  each 
separate  state.  An  impotent  confederation  was  the  result. 
With  the  adoption  of  the  federal  constitution,  sovereignty 
was  assumed  to  be  divided,  and  on  this  theory  several  agencies 
of  government  were  incorporated  —  a  central  agency  for  all 
functions  to  be  undertaken  for  the  common  welfare  of  the 
empire;  a  separate  agency  in  each  state  for  all  functions  which 
were  assumed  not  to  be  common  to  the  nation  as  a  whole; 
a  still  further  subdivision  for  the  exercise  of  strictly  local 
functions. 

The  exercise  of  functions  of  government  was  apportioned 
among  federal  and  state  governments  in  such  manner  as  the 
people  of  the  United  States  adjudged  to  be  for  their  highest 
welfare  —  this  judgment,  by  consent  of  the  governed,  being  ex- 
pressed through  a  provisional  or  established  local  electorate. 
In  the  adoption  of  their  constitutions,  specific  powers  were 
given  to  the  government  of  the  United  States,  and  residuary 
powers  were  retained  by  the  several  state  governments  —  specific 
provisions  in  the  charter  of  each  being  made  for  the  future 
modifications  of  corporate  grants,  whenever  it  might  be  deemed 
necessary  in  order  that  the  government  might  be  better 
adapted  to  the  economic  and  social  needs  of  the  people. 


CHAPTER  VI 

BASAL  'PRINCIPLES   OF   AMERICAN   GOVERNMENT 

45.  References 

Bibliography:  Channing,  Hart  and  Turner,  Guide  (1912),  §§  159,  176; 
A.  B.  Hart,  Manual  (1908),  §§31,  32,  97,  98,  136,  137,  142,  147,  158,  199, 
203,  285,  287;  Justin  Winsor,  Narrative  and  Critical  History  of  America 
(1884-1889),  VI,  272;  W.  E.  Foster,  References  to  the  Constitution  (1890), 
21;  A.  B.  Hart,  Actual  Government  (rev.  ed.,  1908),  ch.  iii,  §  17;  J.  W. 
Gamer,  Introduction  to  Political  Science  (1910),  407;  E.  McClain,  Consti- 
tutional Law  in  the  United  States  (1910),  §§  8,  15,  23;  C.  H.  Van  Tyne,  The 
American  Revolution  (1905),  342-344. 

First  State  Constitutions:  H.  Hitchcock,  State  Constitutions  (1887); 
H.  Davis,  American  Constitutions  (1885);  J.  A.  Jameson,  The  Constitutional 
Convention  (1887);  Charles  Borgeaud,  Adoption  and  Amendment  of  Con- 
stitutions (189s);  W.  C.  Morey,  Genesis  of  a  Written  Constitution  and  the 
First  State  Constitutions  (Am.  Acad,  of  Pol.  Sci.,  Annals,  1891,  1893);  W.  C. 
Webster,  State  Constitutions  of  the  American  Revolution  (Ibid.,  Publications, 
1897,  No.  200);  C.  E.  Merriam,  History  of  American  Political  Theories 
1903);  C.  H.  Van  Tyne,  The  American  Revolution  (1905),  ch.  ix. 

Division  of  Powers:  H.  C.  Black,  Constitutional  Laws  (2d  ed.,  1897), 
ch.  ii;  J.  Bryce,  American  Commonwealth  (rev.  ed.,  1910),  I,  chs.  iv,  xxvii, 
xxviii,  xxxvi,  xxxvii;  T.  M.  Cooley,  Constitutional  Limitations  (7th  ed., 
1903),  ch.  viii;  J.  I.  C.  Hare,  Constitutional  Law  (1889),  lects.  vi,  vii;  J. 
Kent,  Commentaries  on  American  Law  (14th  ed.,  1896),  lect.  xviii;  J.  N. 
Pomeroy,  Constitutional  Law  (10th  ed.,  1888),  §§85,  120. 

Separation  of  Powers  :  W.  Bondy,  Separation  of  Governmental  Powers 
(Columbia  University,  Studies,  1896,  V,  No.  2,  chs.  i-vii);  Montesquieu, 
L'Esprit  des  Lois  (1748),  bk.  xi,  ch.  6;  W.  Bagehot,  The  English  Constitu- 
tion (1886),  ch.  2;  F.  J.  Goodnow,  Pritwiples  of  Administrative  Law  (1905), 
bk.  i,  chs.  i-iv;  J.  Schouler,  Ideals  of  the  Republic  (1908),  ch.  ix;  J.  Story, 
Commentaries  (5th  ed.,  1891),  I,  bk.  iii,  ch.vii;  J.  W.  Garner,  Introduction 
to  Political  Science  (1910),  ch.  xiii;  The  Federalist,  Nos,  47,  48,  49;  E. 
McClain,  Constitutional  Law  (rev.  ed.,  1910),  chs.  iv-vii. 

46.  The    Sovereignty  of  Citizenship 

The  governments  established  immediately  after  the  breaking 
down  of  British  authority  in  American  colonies  are  said  to  be 
de  facto  and  not  de  jure  governments,  on  the  ground  that  a 
6 


66  Principles  of  Government  [§  46 

sovereign  people  may  act  de  jure  only  as  they  act  according  to 
rules  previously  laid  down  for  them  by  their  agents  or  by  them- 
selves. Such  an  assumption,  however,  cannot  be  construed 
to  deny  the  sovereignty  of  citizenship.  It  is  a  well-established 
conclusion  that  when  the  ends  of  poHtical  organization  (the 
welfare  of  the  people)  may  no  longer  be  conserved  by  following 
a  previously  prescribed  rule,  it  is  the  sovereign  right  of  the  people 
to  adopt  a  new  rule  either  by  formal  act  or  informally,  if  need 
be,  by  common  consent.  This  principle  of  revolution  was  set 
forth  in  the  Declaration  of  Independence,  and  in  this  act  the 
colonies  only  followed  a  long  Hne  of  English  precedents. 

Stated  in  another  way,  the  general  theory  of  democracy  is 
that  the  government  is  the  creature  of  the  sovereign ;  that  when 
the  government  fails  to  serve  the  purposes  for  which  it  was 
created  the  sovereign  may  reorganize  the  governing  agency  and, 
if  need  be,  deny  the  continuing  authority  of  the  previously 
existing  government.  This  doctrine  has  assumed  for  popular 
sovereignty  authority  superior  to  that  exercised  by  officers 
under  existing  laws.  To  deny  this  would  be  to  deny  the 
fundamental  assumptions  of  all  democratic  constitutions. 
The  federal  constitution  was  so  framed.  The  same  principle 
has  also  been  applied  since  the  adoption  of  the  federal  constitu- 
tion, the  interpretation  given  being  this  —  that  when  provision 
for  amendment  has  not  previously  been  made  in  written  charters 
of  government,  the  people  who  are  governed  under  them  may 
allow  those  in  whom  they  trust  to  formulate  and  promulgate 
new  charters,  the  sanction  for  this,  as  in  case  of  revolutionary 
government,  being  common  consent.  It  was  on  such  a  theory 
that  provisional  governing  bodies,  or  "committees  of  safety," 
were  given,  or  allowed  to  assume,  full  power  to  reorganize 
governing  agencies  without  being  encumbered  by  existing 
political  theory  or  constitutional  law.  Nor  does  it  matter 
whether  a  constitution  be  separately  voted  and  adopted  by  an 
electorate  representing  the  people,  or  be  passed  as  is  ordinary 
statute  law,  or  for  that  matter,  be  enacted  at  all;  it  may  simply 
grow  up  and  be  estabUshed  by  custom.     The  essential  fact  is 


§47]  First  State  Constitutions  67 

consent  on  part  of  the  people  for  whose  welfare  the  governing 
agency  is  assumed  to  be  established. 

47.  Origin  of  the  First  State  Constitutions 

Acting  on  the  theory  of  government  by  consent  of  the  gov- 
erned, many  of  our  first  constitutions  were  adopted  by  the  same 
processes  as  ordinary  legislation.  Of  so  little  moment  did  it 
seem  at  the  time  as  to  whether  popular  consent  was  given  by 
act  of  qualified  voters  or  by  acts  of  legislative  agents  that  the 
distinction  between  the  method  of  adopting  a  constitution  and 
the  enactment  of  statute  law  by  the  legislature  was  not  fully 
appreciated.^  In  Thomas  v.  Daniel  (2  McCord,  211)  the  court 
decided  that  the  first  two  constitutions  of  South  Carolina  were 
merely  ordinary  statutes.  The  same  may  be  said  of  the  first 
constitutions  of  all  of  the  States^  except  Massachusetts  and 
possibly  Delaware.  Here  the  Legislative  Assembly  of  the 
existing  government,  by  an  act  making  careful  provision  for  a 
fair  election,  called  a  convention  which,  as  may  be  inferred, 
was  elected  for  the  express  and  only  purpose  of  framing  a 
constitution.  It  confined  itself  to  this  hmited  function;  it 
was  strictly  a  Constitutional  Convention.^ 

At  the  time  of  the  breaking  away  of  the  colonies  from  the 
more  ancient  monarchical  forms,  the  doctrine  of  popular  sov- 
ereignty was  not  clearly  defined.  Although  the  doctrine  that 
all  governments  derive  their  just  powers  from  the  consent  of 
the  governed  was  generally  accepted,  the  legal  concept  was 
that  this  consent  must  be  expressed  by  some  definitely  consti- 
tuted agency,  such  as  an  electorate,  a  legislature,  or  a  constitu- 
ent assembly.  WTien  "the  right  of  the  people  to  alter  or  to 
abolish  "  existing  government,  "and  to  institute  new  government, 
laying  its  foundation  on  such  principles  and  organizing  its  powers 

^  Ramsay,  D.,  History  of  the  Revolution  in  S.  C,  p.  135;  Jameson,  John 
Alexander,  The  Constitutional  Covvention,  sec.  136. 

^Within  this  class  fall  the  following  constitutions:  N.  H.,  1776;  S.  C, 
1776,  1778,  and  1790;  Va.,  1776;  N.  J.,  1776;  Pa.,  1776;  Md.,  1776;  Ga.,  1777, 
1789;  N.  C,  1776;  N.  Y.,  1777. 

'  Jameson,  J.  A.,  The  Constitutional  Convention,  sec.  142. 


68  Principles  of  Government  [§48 

in  such  form  as  to  them  shall  seem  most  likely  to  efifect  their 
safety  and  happiness,"  was  proclaimed,  there  was  little  doubt 
that  the  people  included  all  those  who  could  effectively  resist. 
After  the  authority  of  established  government  had  been  broken 
down  and  the  subject  was  approached  by  lawyers  as  a  matter 
of  law,  it  at  once  became  clouded  in  a  haze  of  ancient  political 
doctrines  that  originated  under  a  regime  of  absolutism  and 
conquest  from  which  the  colonists  had  broken  away,  i  Were 
those  provisional  governments  which  had  been  organized  prior 
to  and  during  the  inception  of  the  war  for  independence 
without  authority  or  right  because  no  law  had  been 
passed  for  the  purposes  of  estabHshing  and  modifying 
government?  Reason,  expressing  itself  through  the  courts, 
answered  the  question  in  the  negative.  Must  the  people  go 
still  farther  back  and  ask  the  King  or  those  who  had  been  in 
authority  prior  to  the  appeal  to  arms  to  reorganize  their  govern- 
ment in  order  that  the  sovereignty  might  be  considered  regular? 
Such  an  act  would  be  at  variance  with  the  underlying  principle 
of  democracy:  viz.,  that  the  government  is  only  an  agency  the 
form  of  which  may  at  any  time  be  changed  by  consent.  The 
reason  for  revolution  has  been  that  the  government  has 
stood  in  the  way  of  a  free  expression  of  the  popular  will  and 
against  the  better  adaptation  of  the  established  institution  to 
community  needs  as  conceived  by  the  people. 

48.   Distinction  Between  Citizenship  and  Government 

On  board  the  Mayflower  at  the  time  of  the  formation  of  the 
fundamental  compact  of  the  Plymouth  colony,  and  in  those 
colonies  where  their  first  constitutions  were  framed  by  popular 
assembly,  were  found  examples  of  a  pohtically  organized  people, 
in  which  all  the  essential  elements  were  present.  Viewing  the 
Plymouth  colony  as  an  independent  embryo  state,  the  citizenship 
was  composed  of  all  persons  who  made  up  the  sailing  list  plus 
one  other  who  had  been  born  during  the  voyage.  By  consent 
the  small  minority  who  signed  the  first  governing  compact  were 
allowed  by  the  others  to  represent  this  citizenship  in  the  capacity 


§  49]  Delegated  Powers  69 

of  an  electorate.  By  consent,  also,  this  organized  electorate  at 
first  became  the  government,  till  such  time  as  distinct  legisla- 
tive, executive,  and  judicial  ofl&cers  were  elected  or  appointed. 
Later  when  the  government  took  on  a  representative  charac- 
ter those  who  had  exercised  authority  simply  served  as  an  "elec- 
torate," while  persons  elected  by  them  became  the  ofl&cial  class. 
This  was  done  because  the  "electorate"  became  too  numer- 
ous to  assemble  in  one  convention  and  currently  to  transact 
the  business  of  the  colony.  In  the  nature  of  things  all  persons 
in  the  colony  (all  citizens)  could  not  have  a  voice  in  the  govern- 
ment. One  was  only  a  few  days  old  at  the  time  they  organized. 
Others  were  still  babes  in  arms.  There  must  be  a  division 
between  citizenship  and  government.  In  democratic  govern- 
ment, as  a  practical  matter,  there  must  also  be  a  division  between 
the  electorate  and  the  official  class.  But  does  the  fact  that  it 
is  not  possible  for  the  electorate  to  meet  in  one  place,  or  that 
they  may  appoint  committees  or  delegates  to  assemble  and 
formulate  plans  and  then  report  back  these  plans  to  them  for 
adoption,  or  that  some  committee  or  group  gratuitously  formu- 
late a  plan  which  is  consented  to,  materially  change  the  essential 
nature  of  this  organization? 

49.  The  Theory  of  Delegated  Powers 

It  was  long  contended  that  delegates  were  the  politically 
organized  people.  The  debates  of  constitutional  conventions 
of  the  first  half  of  the  national  period  are  full  of  expressions  of 
this  view.  Livingston,  in  the  New  York  Convention,  1821, 
declared:  "The  people  are  here  themselves;  they  are  present 
in  their  delegates";^  Peters  in  the  IlHnois  convention  in  1847 
expressed  the  view:  "  We  are  the  sovereignty  of  the  state.  We 
are  what  the  people  of  the  state  would  be  if  they  were  congre- 
gated here  in  one  mass  meeting.  We  are  what  Louis  XIV  said 
he  was,  'We  are  the  state.' "  The  same  conclusion  was  urged  by 
Yancey  in  the  Alabama  convention  of  1861.    The  question  being 

^  Carter,  Stone,  and  Gould,  Proceedings  and  Debates  oj  the  Convention  oj 
1821,  pp.  199  et  seq. 


70  Principles  of  Government  [§  49 

on  the  submission  of  the  proposed  constitution,  the  ordinance 
of  secession,  he  said:  "This  proposition  is  based  on  the  idea 
that  there  is  a  difference  between  the  people  and  the  delegates. 
It  seems  to  me  that  this  is  an  error.  .  .  .  The  people  are  here  in 
the  persons  of  their  deputies.  Life,  liberty,  and  property  are 
in  our  hands.  Look  to  the  ordinance  adopting  the  constitution 
of  Alabama.  It  states,  '  We,  the  people  of  Alabama,'  etc. 
*  All  our  acts  are  supreme  without  ratification,  because  they  are 
the  acts  of  the  people  acting  in  their  sovereign  capacity.'  "^ 

Expressing  the  thought  which  is  more  prevalent  to-day, 
Borgeaud  says:  "In  the  United  States,  the  constitutional 
convention  acts  within  the  limits  of  its  mandate.  The  legisla- 
ture is  the  permanent  representative  of  the  people.  The 
convention  is  a  special  committee  of  delegates.  These  delegates 
may  have  received,  in  general  terms,  the  command  to  revise  the 
constitution.  In  this  case  they  are  free  to  submit  to  the  electors 
whatever  plan  they  may  deem  fit,  provided  this  plan  contains 
nothing  contrary  to  the  federal  constitution.  But  they  may 
also  have  been  given  the  special  task  of  revising  only  certain 
parts  of  the  constitution.  In  this  case  they  are  bound  absolutely 
by  the  act  of  the  legislature,  which  has  specified  the  points 
toward  which  their  acting  may  be  directed,  and  in  consideration 
of  which  the  people  have  conferred  upon  them  their  mandate. 
Their  full  power  extends  to  this  point  and  no  further.  If  they 
were  to  go  beyond  it  they  would  be  placed  in  a  position  analogous 
to  that  of  the  legislator  who  has  enacted  a  law  contrary  to  the 
constitution.  The  legislature  has  received  from  the  people  the 
right  to  act  within  the  Hmits  traced  by  the  constitution.  Let 
it  pass  once  beyond  these  limits  and  it  ceases,  in  so  far,  to  be 
the  legislative  power.  The  law  thus  made  is  without  con- 
stitutional value  and  may  be  attacked  in  the  courts.  It  is  true 
that,  in  the  case  of  a  convention,  the  power  which  may  legalize 
the  transgression  is  close  at  hand.  If  the  electors,  called  to 
decide  upon  the  facts  of  a  constitutional  amendment  proposed 

1  Hist.  Debates,  Alabama  Convention,  1861,  p.  114;  Jameson,  J.  A.,  The 
Constitutional  Convention,  sees.  311-12. 


§  5o]  Popular  Assent  71 

by  an  assembly  which  possessed  no  right  to  formulate  such  an 
amendment,  sanction  it,  it  becomes  a  part  of  the  constitution. 
But  that  does  not  render  the  act  by  which  it  has  been  submitted 
to  the  people  any  less  illegal.  The  legislature  would  have  been 
justified  in  requiring  the  government,  whose  duty  it  is  to  conduct 
the  voting,  to  refuse  to  take  it.^ 

60.  Constitution  Making  Founded  on  Popular  Assent 

Any  vahdity  given  to  such  a  constitutional  modification  must 
come  from  that  governmental  agency  known  as  the  electorate  — 
an  agency  established  or  accepted  for  the  purpose  of  expressing 
the  sovereign  will.  This  will  is  the  will  of  the  people  —  the 
will  of  citizenship.  Any  right  enjoyed  or  power  exercised  by 
delegates  or  by  legislators  to  alter  and  change  the  plan  of  the 
government  cannot  be  considered  as  an  inherent  right  or  power 
which  the  delegates  or  legislators  possessed.  They  may  take 
such  action,  and  the  result  may  be  accepted  or  assented  to. 
Using  the  same  opinion  as  that  quoted  by  Borgeaud,  "A  conven- 
tion has  no  inherent  rights;  it  exercises  delegated  powers  only. 
Delegated  power  defines  itself.  To  be  delegated,  it  must  come 
in  some  adopted  maimer  to  convey  it,  by  some  defined  means. 
This  adopted  manner  therefore  becomes  the  measure  of  the 
power  conferred.  The  right  of  the  people  is  absolute,  in  the 
language  of  the  Bill  of  Rights,  to  alter,  reform,  or  aboUsh  their 
government  in  such  manner  as  they  may  think  proper.  This 
right  being  theirs,  they  may  impart  so  much  or  so  little  of  it  as 
they  shall  deem  expedient.  It  is  only  when  they  exercise  this 
right,  and  not  before,  that  they  determine,  by  the  mode  they 
choose  to  adopt,  the  extent  of  the  powers  they  intend  to 
delegate."  2 

From  all  these  precedents  of  constitution  making  it  must  be 
concluded  that  a  politically  independent  people  —  i.e.,  a  people 
free  from  an  overlord  who  assumes  to  exercise  arbitrary  power  — 
which  has  accepted  or  consented  to  a  charter  or  incorporation 

'  Borgeaud,  C,  Adoption  and  Amendment  of  Constitutions,  p.  184. 
'  Wood's  Appeal,  75  Pa.  St.,  p.  71. 


72  Principles  of  Government  [§  51 

is  bound  by  this  acceptance  in  the  same  manner  as  was  King 
John  when  he  assented  to  Magna  Charta,  and  the  English  people 
who,  though  not  direct  parties,  assented  to  the  acts  of  those 
present.  If  the  charter  to  which  consent  is  given  prescribe  a 
method  of  amendment,  this  method  carries  with  it  the  same 
sanction,  and  such  only  as  the  government  itself;  an  electorate 
representing  the  sovereign  must  act  imder  and  follow  the  charter 
as  strictly  as  legislators,  judges,  or  administrators  until  a  new  and 
different  charter  is  accepted,  whatever  be  the  method  of  the 
subsequent  adoption.-'  If  we  are  to  make  our  poUtical  theory 
square  with  the  facts  we  must  accept  for  amendments  the 
principle  which  lies  back  of  that  part  of  the  constitution  known 
as  the  bill  of  rights;  viz.,  that  sovereignty  is  a  power  which  lies 
outside  of  and  is  superior  to  the  corporate  agent;  that  the  oflScial 
class  cannot  assume  to  deny  to  the  sovereign  the  right  to 
change  the  fundamental  law;  that  the  voice  of  the  electorate 
must  be  accepted  as  the  voice  of  the  sovereign  unless  a  too 
narrow  electorate  may  itself  be  overthrown  by  revolution. 

61.  Legislatures  as  Constitution  Makers 

No  illustrations  appear  to  give  this  concept  greater  clearness 
than  the  constitutional  provisions  made  for  amendment  by 
legislative  action  entirely,  without  reference  to  the  people.  For 
example,  the  constitution  of  Delaware  provides  that  "the 
general  assembly,  whenever  two-thirds  of  each  house  shall  deem 
it  necessary,  may,  with  the  approbation  of  the  governor,  propose 
amendments  to  this  constitution,  and,  at  least  three  and  not 
more  than  six  months  before  the  next  general  election  of  repre- 
sentatives, duly  publish  them  in  print  for  the  consideration  of 
the  people;  and  if  three-fourths  of  each  branch  of  the  legislature 
shall,  after  such  an  election,  and  before  another,  ratify  the  said 
amendments,  they  shall  be  vaUd  to  all  intents  and  purposes  as 
parts  of  this  constitution."  ^  For'  this  purpose  the  members 
were  not  to  be  regarded  as  legislators;  when  considering  con- 
stitutional amendments  they  served  in  the  same  capacity  as  an 
1  Del.  Const.,  1831,  Art.  IX. 


§  52]  Government  a  Trusteeship  73 

electorate  exercising  the  same  powers.  This  was  a  method 
prescribed  by  those  who,  through  the  consent  of  citizens,  were 
permitted  to  represent  them  in  the  matter;  legislators  by  consent 
of  the  people  made  themselves  trustees  for  the  purposes  of  con- 
stitutional amendment,  referring  the  amendments  passed  to  a 
direct  vote  of  the  electorate.  And  in  case  the  people  should 
adopt  or  consent  to  any  other  method  this  would  be  quite  as 
valid.  Having  constituted  the  legislature  an  amending  agent, 
however,  any  attempt  on  the  part  of  the  legislature  or  the 
electorate  to  amend  in  another  way  would  be  valid  only  by  a 
new  consent.  It  is  evident,  however,  that  when  this  consent  is 
given,  the  revised  charter  may  be  just  as  efifective  and 
just  as  legal  as  if  enacted  in  a  previously  prescribed  manner. 
Practically  this  is  a  method  of  asserting  the  will  of  the  people 
through  the  votes  of  the  electorate  for  members  of  the 
second  or  ratifying  legislature. 

52.  Government  as  a  Trusteeship 

The  underl)ring  purpose  of  the  American  commonwealth  is 
the  same  as  the  underlying  purpose  of  the  town  of  the  Teuton; 
viz.,  government  for  the  benefit  of  the  governed.  In  organiz- 
ing, to  reaUze  this  purpose  the  principle  of  broad  sovereignty 
has  been  invoked  —  the  right  of  a  dominant  will  to  command 
the  combined  powers  and  resources  of  the  people  as  a  means 
of  subordinating  all  local,  special,  and  personal  interests  of 
individuals  or  groups  within  the  territory  controlled.  By 
making  the  citizenship  of  the  territory  the  sovereign,  the  form 
of  organization  instituted  by  citizenship  for  purposes  of  gov- 
ernment becomes  a  trusteeship. 

To  a  trusteeship  these  elements  are  necessary:  (i)  a  bene- 
ficiary; (2)  a  trustee;  (3)  an  intrusted  interest  or  estate.  In 
a  representative  democracy  the  citizen  is  beneficiary;  the 
government  is  trustee;  public  welfare  and  public  funds  and 
properties  the  entrusted  interest  and  estate.  With  citizenship 
sovereign,  under  our  written  constitutions,  the  government  be- 
comes a  highly  defined  corporate  trusteeship,  every  precaution 


74  Principles  of  Government  [§  52 

being  taken  to  make  both  the  electorate  and  governing  agents 
responsive  to  public  will  and  responsible  for  breaches  of 
trust. 

To  restate  this  underlying  principle:  All  powers  which  may  be 
exercised  by  this  incorporated  trustee  for  the  common  welfare 
(the  government)  have  been  delegated  to  two  constitutional 
governing  classes;  viz.,  (i)  an  electorate  and  (2)  an  official 
class. 

The  purpose  of  the  electorate  is  to  provide  a  non-official  class 
of  persons  whose  duties  shall  be  to  determine  and  to  express 
the  will  of  citizens;  (a)  with  respect  to  all  subjects  having  to 
do  with  modification  of  the  articles  of  incorporation  (or  deeds 
of  trust)  under  which  officers  are  to  exercise  powers,  (b)  with 
respect  to  the  succession  of  those  who  are  to  exercise  the  chief 
governing  power,  and  (c)  with  respect  to  certain  fundamental 
questions  the  right  to  decide  which  have  been  reserved  for 
popular  action  or  which  are  referred  to  the  people  by  the 
official  class. 

The  purpose  of  the  official  class  is  to  use  the  powers  delegated 
and  to  administer  the  estate  provided  for  the  purposes  set  forth 
in  the  several  deeds  of  trust  —  the  several  charters  of  govern- 
ment which  provide  for  the  orderly  conduct  of  afifairs,  national, 
state,  and  local.  A  description  of  the  evolution  of  the  insti- 
tutional means  which  have  been  devised  to  make  these  agen- 
cies of  citizenship  responsive,  responsible,  and  efficient  is  the 
principal  subject  of  the  chapters  which  follow. 

To  the  end  that  the  electorate  may  be  responsive,  like  citizen- 
ship itself,  it  has  been  freed  from  personal  interest  in  office;  it 
has  no  power  or  authority  to  direct  the  operations  and  activi- 
ties of  the  government  or  to  possess  or  use  any  of  its  funds  or 
properties;  it  has  been  made  a  highly  specialized  agency  with 
only  one  duty  to  perform  —  to  vote.  Even  in  the  recent  exten- 
sion of  the  principle  of  direct  legislation  through  the  initiative 
and  referendum  the  function  of  the  electorate  is  to  vote.  As 
provided  for  in  certain  jurisdictions  they  may  submit  a  pro- 
posal without  action  on  the  part  of  the  official  class.      Thus 


§  53]  Division  of  Powers  y^ 

citizenship  may  formulate,  but  the  submission  must  be  made 
to  the  electorate  or  to  the  ofi&cial  class,  or  both.  But  the 
means  employed  by  the  citizen  must  be  a  signature  or  vote. 
To  the  end  that  responsibility  may  be  located  for  legislation, 
for  executive  direction  and  control,  for  adjudication,  the  official 
class  has  had  delegated  to  it  all  the  powers  of  government 
to  be  exercised  except  those  which  have  been  delegated  to  the 
electorate.  The  official  class  is  made  responsible  for  the  use 
of  the  funds,  properties,  and  the  organized  forces  of  the 
government  for  welfare  ends.^r___,^  ;    : 

63.  Division  of  Powers  in  a  Federation 

One  of  the  first  dangers  to  which  a  representative  government 
is  exposed  is  usurpation  —  which  means  the  overthrow  of  the 
principle  that  government  is  a  trusteeship  by  an  improper  use 
of  the  powers  delegated  to  the  official  class.  Recognizing  this 
danger,  for  its  own  protection  the  American  commonwealth 
adopted  as  a  principle  of  corporate  organization,  which  is  called 
"the  theory  of  checks  and  balances,"  a  principle  which  was 
evolved  out  of  centuries  of  conflict  between  the  governing 
and  the  governed  for  the  reduction  of  the  arbitrary  powers 
assumed  by  monarchs.  Having  organized  a  trusteeship  and 
placed  in  the  hands  of  officers  the  authority  to  amass  and  direct 
the  organized  forces  of  the  state,  the  practical  problem  has  been 
to  create  and  keep  in  active  operation  the  means  for  holding 
the  officers  to  the  performance  of  such  acts  and  such  only  as 
are  clearly  written  within  their  trust  responsibility. 

As  has  been  said,  the  first  and  most  important  step  to  guaran- 
tee citizens  protection  against  usurpation  was  to  invoke  the 
principle  worked  out  in  the  conflict  between  monarch  and  lord 
under  the  feudal  regime  —  that  of  balancing  powers.  This 
was  done  by  organizing  the  government,  not  as  one  corpora- 
tion, but  as  several  corporations.  Each  corporate  trustee 
was  to  have  jurisdiction  within  the  same  territory  with  two  or 
more  other  coq3orations;  each  was  to  have  control  over  differ- 
ent subjects  or  governmental  activities.     Considered  from  the 


76  Principles  of  Government  [§  53 

viewpoint  of  jurisdiction  the  American  commonwealth  is  a 
broadly  organized  citizenship  which  has  incorporated  a  group 
of  public  welfare  agencies,  each  exercising  such  powers  only  as 
have  been  expressly  or  impHcitly  bestowed  by  the  people  in 
written  charters.  The  essential  characteristics  of  each  of  these 
several  corporations  are  the  same:  as  a  corporation  each  holds 
all  properties  acquired  and  all  funds  in  trust  for  the  expressed 
or  implied  purpose  of  its  being;  further  than  this  the  powers 
which  each  may  exercise  have  been  carefully  described  in  sepa- 
rate grants.  —  beyond  which  the  person  exercising  powers  has 
no  greater  authority  than  any  other  citizen. 

In  the  incorporation  of  each  agency  the  following  principles 
have  guided:  (i)  Those  citizen  needs  which  are  common  to  all 
persons  residing  and  holding  property  within  the  territorial 
limits  of  the  United  States  have  been  made  the  subject  of  a 
single  corporate  agency  —  the  federal  government.  (2)  Those 
citizen  needs  which  it  was  thought  might  not  best  be  met  by  a 
single  national  agency  have  been  made  the  subjects  of  incorpora- 
tion by  smaller  groups  of  citizens  within  territorial  subdivisions 
called  states.  Again  within  each  of  these  states  those  needs 
which  are  common  to  citizens  of  the  state,  which  it  was  thought 
might  best  be  met  by  a  common  state  agency,  have  been  made^ 
the  subjects  of  incorporation  in  the  government  of  the  state. 
(3)  Those  special  or  local  needs  which  it  was  thought  might  best 
be  met  by  local  public  agencies  were  made  the  subjects  of  corpo- 
rate activities  still  more  local  in  their  jurisdiction,  such  as 
counties,  school  districts,  drainage  districts,  park  districts, 
rural  police  districts,  cities,  towns,  villageg,  townships,  sewage 
districts,  irrigation  districts,  etc.  All  of  these  corporations 
combined  are  the  government  to  which  each  citizen  must  look 
for  the  protection  of  Ufe,  Hberty,  and  property,  the  preservation 
of  social  order,  the  promotion  of  the  social  and  economic  wel- 
fare of  the  community  in  which  he  Hves.  All  of  these  corpora- 
tions combined,  each  exercising  its  distmct  powers,  each  acting 
within  a  definitely  described  territorial  jurisdiction,  are  the 
government  of  the  American  people. 


'   §§  54,  55]  Officers  as  Custodians  JJ 

64.  Distribution  of  Powers  among  Officials 

Just  as,  in  the  conflict  between  King  and  lord,  the  solution 
had  been  the  division  of  power  along  the  Hne  of  corporate  juris- 
diction, just  as  the  King  was  limited  by  the  concessions  made 
to  local  governing  bodies,  just  as  powers  were  given  to  those  who 
contested  the  King's  right  to  decide  a  local  question,  resulting 
in  what  may  be  called  a  balancing  of  power  along  corporate 
lines,  and  just  as  in  the  conflict  between  monarchs  each  became 
limited  by  agreements  resulting  in  an  international  balancing 
of  powers,  so  in  the  conflicts  between  the  ofl&cial  classes,  the 
solution  was  to  divide  the  exercise  of  power  between  officers 
and  the  electorate,  and  then  still  further  to  divide  and  specify 
the  powers  of  officers  in  such  manner  that  those  powers  exer- 
cised by  one  officer  or  class  of  officers  would  be  balanced  by  the 
powers  exercised  by  another  class.  This  later  principle,  which 
•  had  become  recognized  in  England,  was  also  invoked  in  the 
organization  of  each  of  the  corporations  making  up  the  govern- 
ment of  the  American  commonwealth.  It  is  expressed  in  each 
of  the  constitutions  in  those  clauses  separating  the  powers  of 
the  legislative  branch,  the  executive  branch,  and  the  judicial 
branch.  It  is  also  found  ex-pressed  in  those  provisions  clearly 
differentiating  powers  of  civil  government  from  those  of  mili- 
tary government. 

56.  Officers  as  Custodians  and  Administrators 
Full  appreciation  of  the  miderlying  principles  of  our  forms 
of  government  requires  that  the  analysis  be  carried  one  step 
farther.  By  making  our  trustee  for  public  properties  and 
funds  a  corporation  an  important  limitation  was  imposed.  A 
corporation,  as  such,  can  exercise  powers  and  perform  acts  only 
through  officers.  To  the  corporation,  the  officer  is  an  agent. 
Those  living  agents,  having  no  interest  of  their  own  in  or  right 
to  the  moneys,  properties,  equipment,  and  other  things  of  value 
which  come  into  their  keeping,  in  turn  must  hold  as  custodians 
without  the  power  to  convey.    As  custodians  they  can  only 


78  Principles  of  Government 


55 


hold  and  use.  The  one  purpose  for  which  they  can  use  is  to 
serve  the  citizen  needs  for  which  the  corporation  has  been 
created.  It  is  with  respect  to  these  Hving  persons,  the  cor- 
porate agents,  that  the  law  has  been  most  exacting  in  its 
demands. 

Here  again  responsibility  was  made  definite,  by  separating 
the  policy-making  and  money-raising  power  from  the  policy- 
executing  and  money-spending  power.  In  the  contest  between 
the  governing  and  the  governed,  the  abihty  to  amass,  direct, 
and  control  material  resources  has  been  fundamental  to  the 
exercise  of  sovereignty.  It  has  been  by  taking  the  law-making 
and  the  revenue-raising  power  out  of  the  hands  of  the  executive 
that  the  sovereign  by  right  of  conquest  was  made  subservient 
to  the  interests  of  citizenship.  Under  our  form  of  government 
this  principle  was  appUed  through  giving  the  legislative  branch 
of  the  government  power  to  determine  what  shall  be  done,  what 
revenues  shall  be  raised,  and  what  authorizations  shall  be  made 
for  spending  —  even  to  fix  the  conditions  under  which  the 
expenditure  wall  be  lawful  —  thus  hmiting  executive  and  ad- 
ministrative agents  to  carrying  out  policies  determined  by  the 
legislature.  Within  each  corporation  this  grant  and  division 
of  power  also  carries  with  it  both  powxr  and  definiteness  of  re- 
sponsibiHty.  Generally  speaking,  legislative  agents  are  chosen 
to  express  the  sovereign  will  of  citizens  in  formulating  and 
financing  a  government  programme;  executive  agents  are 
chosen  to  execute  the  sovereign,  will  so  expressed  by  legislative 
agents  and  have  no  power  to  spend  money  or  to  carry  on  activi- 
ties not  specifically  provided  for;  judicial  agents  are  chosen 
to  express  sovereign  will  in  determining  the  meaning  of  charters 
and  laws  as  applied  to  specific  acts  of  legislative  and  execu- 
tive agents.    \.- ' 

Another  principle  adopted  as  a  means  of  preventing  usurpa- 
tion of  power  is  found  in  the'  Hmitation  of  tenure.  Under 
monarchical  forms  of  government  the  termination  of  the  tenure 
of  the  monarch,  as  a  means  of  forcing  responsibihty,  has  rarely 
been  effected  except  by  revolution.    Thus  the  value  of  making 


§  56]  Problems  of  Government  79 

the  succession  dependent  on  the  will  of  the  people  recurrently 
at  regular  intervals  has  been  lost.  To  the  end  that  the  trustee 
might  continue  mindful  of  his  trust,  that  the  official  servants 
might  not  assume  superiority  to  those  whom  they  served,  in 
our  constitutions  all  official  terms  are  either  limited  or  termi- 
nable, and  to  make  the  principle  eflfective  a  definite  procedure 
has  been  provided.  The  Constitutional  purpose  of  making  an 
office  elective  is  to  provide  a  means  for  making  the  question 
of  succession  automatically  one  of  frequent  consideration,  and 
bringing  the  officials  to  frequent  account. 

56.  The  Problems  of  Government 

In  this  view  of  our  government  the  American  people  have 
before  them  the  following  fundamental  problems:  (i)  How  may 
the  citizen  as  a  citizen  become  more  effective  both  in  his  capac- 
ity as  sovereign  and  in  his  capacity  as  beneficiary?  (2)  How  may 
the  electorate  be  made  more  effective  as  an  agency  for  expressing 
the  sovereign  will?  (3)  How  may  the  officer  be  made  more 
efficient?  This  last  question  in  turn  resolves  itself  as  follows: 
How  may  legislators  be  made  more  responsive  to  the  citizen 
will  in  enacting  laws  and  financing  governmental  affairs?  How 
may  the  judiciary  be  made  more  responsive  to  the  citizen  will 
in  interpretation  and  construction  of  laws  in  all  matters  requir- 
ing formal  adjudication?  How  may  the  executive  officers  and 
administrative  agents  use  the  organization,  the  funds,  and 
equipment  provided,  with  greater  economy  and  efficiency  in 
the  direction  and  management  of  the  details  of  the  business 
of  the  public  corporation  —  the  government  —  to  the  end 
that  the  welfare  of  the  people  may  be  conserved?  It  is  in 
relation  to  these  questions  that  the  remaining  chapters  have 
been  written. 


Part   II 

Provisions  for  Making  Citizenship  Effective 


CHAPTER  VII 

RIGHTS  RETAINED   BY  CITIZENS  AS  AGAINST  THE 
GOVERNMENT 

57.  References 

Bibliography:  A.  B.  Hart,  Manual  (1908),  §§97,  98,  100,  155,  159, 
192,  202,  286;  E.  McClain,  Constitutional  Law  (1910),  §§206,  211,  217, 
220,  226,  244,  255;  A.  B.  Hart,  Actual  Government  (rev.  ed.,  1908), 
§§  7,  239. 

Religious  Liberty:  Wm.  Blackstone,  Commentaries  (Cooleyed.,  1899), 
bk.  iv,  §§  43-53,  80-84;  H.  C.  Black,  Constitutional  Law  (2d  ed.,  1897),  §§ 
196-198;  T.  M.  Cooley,  Constitutional  Limitations  (7th  ed.,  1903)  ch.  xiii; 
T.  M.  Cooley,  Constitiitioanl  Law  (1898),  ch.  xiii,  §  i;  J.  Story,  Commen- 
taries on  the  Constitution  (5th  ed.,  1891),  §§  1843-1849,  1870-1879;  J.  R. 
Tucker,  Constitution  (1899),  §  326;  J.  Bryce,  American  Commonwealth 
(rev.  ed.,  1910),  ch.  ciii. 

Judicial  Rights:  T.  M.  Cooley,  Constitutional  Limitations  (7th  ed., 
1903),  ch.  xi;  ;  T.  M.  Cooley,  Constitutional  Law  (1898),  ch.  xiii,  §§  4,  5, 
XV,  §§  3-6,  xvi,  §1;  H.  C.  Black,  Constitutional  Law  (2d  ed.,  1897),  §§  212- 
214,  220-223,  ch.  xx;  J.  N.  Pomeroy,  Constitutional  Law  (loth  ed.,  1888), 
§§  242-250;  J.  Story,  Commentaries  on  the  Constitution,  §§  1 769-1 794;  F. 
Lieber,  Civil  Liberty  and  Self -Government  (1874),  chs.  xix,  xx;  J.  R.  Tucker, 
Constitution  (1899),  §§334,  390;  E.  McClain,  Constitutional  Law  (rev.  ed., 
1910),  chs.  xlii-xlv. 

Right  of  Petition  and  Assembly:  H.  C.  Black,  Constitutional  Law  (2d 
ed.,  1897),  §  243;  T.  M.  Cooley,  Constitutional  Limitations  (7th  ed.,  1903), 
*349;  T.  M.  Cooley,  Constitutional  Law  (1898),  ch.  xiv,  §3;  E.  McClain, 
Constitutional  Law  in  the  United  States  (1910),  ch.  xxxix;  J.  Story,  Commen- 
taries on  the  Constitution  (5th  ed.,  1891),  §§  1893-1895;  J.  R.  Tucker,  Con- 
stitution (1899),  671;  F.  Lieber,  Civil  Liberty  and  Self -Government  (1874), 
ch.  xii. 

Right  to  Bear- Arms:  H.  C.  Black,  Constitutional  Law  (2d  ed.,  1897), 
§§  203,  218;  T.  M.  Cooley,  Constitutional  Limitations  (7th  ed.,  1903),  *  350; 
T.  M.  Cooley,  Constitutional  Law  (1898),  ch.  xiii,  §  2,  xiv,  §  4;  F.  Lieber, 
Civil  Liberty  and  Self-Government  (1874),  ch.  xi;  E.  McClain,  Constitutional 
Law  in  the  United  States  (rev.  ed.,  1910),  ch.  xl;  J.  Story,  Constitution  (5th 
ed.,  1891),  §§  1896-1900;  J.  R.  Tucker,  Constitution  (1899),  671,  672 


J 


§58]  Citizenship  and  Government  8i 

58.     Citizenship  and  Government 

Having  in  mind  the  two  constituent  factors  in  a  democratic 
state  —  viz.,  citizenship  and  government  —  it  is  of  interest  to 
note  what  domain  citizens,  as  sovereigns  and  as  beneficiaries, 
have  carved  out  for  themselves.     Consistent  with  the  theory 
of  popular  sovereignty,  our  constitutions  have  set  up  definite 
constitutional  Hmits  or  barriers  which  the  government  may 
not  pass.     Some  of  these  are  essential  to  the  exercise  of  sover- 
eignty and  to  the  enjoyment  of  the  benefits  of  government. 
If  the  people  are  to  rule  they  must  determine  what  the  govern- 
ment shall  do  and  what  it  shall  not.     If  government  is  to  be 
made  responsive  to  citizen  will  it  is  evident  the  government 
must  not  interfere  with,  the  freedom  of  citizens  to  think  and  to 
express  their  thoughts.     But  the  sovereign  must  not  only  be 
free  to  think,  there  must  be  ability  to  command.      If  the 
sovereign  power  of  the  state  is  to  reside  in  citizenship  as  dis- 
tinguished from  the  government,  it  is  evident  that  the  people 
must  be  in  a  position  at  all  times,  if  need  be,  to  wage  ofi^ensive 
or  defensive  warfare;  and  to  this  end  must  be  permitted  to 
familiarize  themselves  with  the  use  of  modern  methods  and 
instruments  of  warfare.    That  is,  the  ability  to  amass  and 
direct  the  forces  of  state  in  the  last  analysis  must  not  be  in  a 
standing  army  and  a  professional  military  class.    Whatever 
of  advantage  there  may  be  in  maintaining  an  army  as  a  regidar 
constitutional  agency,  this  must  be  subservient  to  the  govern- 
ment and  the  government  subservient  to  the  people.     In  the 
development  of  European  constitutional  government  whatever 
rights  are  enjoyed  by  citizens  as  against  the  government  have 
been  wrung  from  the  government  as  concessions.     In  America 
after  the  Revolutionary  War  the  people  decided  what  powers 
would  be  given  to  the  government  and  what  ones  would  be 
retained.      It  is  of  special  interest,  therefore,  to  note  that  all 
of  the  guarantees  which  citizens  have  set  up  for  themselves  as 
sovereign  have  the  efifect  only  of  giving  further  clearness   to 
clauses  containing  charter  grants. 
7 


V 

82  Rights  of  Citizens  [§§  59, 60 

59.  Freedom  to  Think  and  to  Express  Thought 

The  absence  of  adequate  means  for  expressing  popular  will 
is  one  of  the  criteria  of  arbitrary  government.  In  fact  it  has 
been  the  aim  of  absolutism  in  all  ages  to  suppress  all  expres- 
sions of  popular  will.  Laws  against  heresy,  apostasy,  libel, 
slander,  treasonable  speech,  peaceable  assembly,  free  press, 
free  speech,  free  thought  are  the  outgrowth  of  efforts  to  restrain 
thought  and  actions  which  may  lead  to  resistance  to  preroga- 
tives once  established  by  armed  force.  The  more  absolute 
the  government,  the  more  completely  is  the  expression  of 
popular  wdll  restrained.  It  is  only  under  popular  government 
that  adequate  means  of  expression  are  found. 

Although  beliefs  and  convictions  are  wholly  imponderable 
and  revealed  only  by  voice  and  action,  many  despotic  govern- 
ments have  undertaken  to  prescribe  what  the  people  shall 
think  and  to  find  out  their  thoughts  by  inquisitions  of  various 
kinds,  often  including  torture.  That  freedom  to  think  without 
a  legal  penalty  and  without  force  to  compel  the  revelation  of 
thought  has  been  fully  appreciated,  under  popular  systems  of 
government,  appears  in  the  continuous  attention  given  to 
freedom  from  intellectual  restraint  on  the  one  hand  and  the 
facilities  provided  for  popular  education  on  the  other. 

60.   Religious  Thought  as  a  Crime 

One  of  the  most  powerful  influences  brought  to  bear  upon 
a  conquered  and  servile  people  has  been  the  church.  Under  a 
regime  of  absolutism  its  teachings  have  usually  aimed  to  protect 
the  estabhshed  order.  Hence  to  renounce  the  estabHshed 
church,  to  embrace  a  so-called  "false  religion,"  or  to  hold  no 
religion  at  all  (apostasy)  was  a  crime.  Says  Blackstone,  "We 
find  by  Bracton  that  in  his  time  apostates  were  to  be  burned 
to  death  .  .  .  yet  the  loss  of  life  is  a  heavier  penalty  than 
the  offense,  taken  in  a  ci\dl  light,  deser\xs.  .  .  .  This  punish- 
ment, therefore,  has  long  ago  become  obsolete,  and  the  offense 
of  apostasy  was  for  a  long  time  the  object  only  of  the  ecclesias- 


§  6o]  Religious  Thought  83 

deal  courts.  .  .  .  But  about  the  close  of  the  last  century, 
the  civil  liberties  to  which  we  were  then  restored  being  used 
as  a  cloak  of  maliciousness,  and  the  most  horrid  doctrines,  sub- 
versive of  all  religion,  being  publicly  avowed,  both  in  discourse 
and  writings,  it  was  thought  necessary  again  for  the  civil  power 
to  interpose,  by  not  admitting  those  miscreants  to  the  privi- 
leges of  society  who  maintained  such  principles  as  destroyed 
all  moral  obligation.  To  this  end  it  was  enacted  by  statutes 
9  &  10,  WiUiam  III.  c.  32,  that  if  any  person  educated  in,  or 
having  made  profession  of,  the  Christian  religion,  shall,  by 
writing,  printing,  teaching,  or  advised  speaking,  deny  the 
Christian  religion  to  be  true,  or  the  holy  scriptures  to  be  of 
divine  authority,  he  shall  upon  the  first  offence  be  rendered  in- 
capable to  hold  any  ofiice  or  place  of  trust;  and  for  the  second 
be  rendered  incapable  of  bringing  any  action,  being  guardian, 
executor,  legatee,  or  purchaser  of  lands,  and  shall  suffer  three 
years'  imprisonment  without  bail."  ^ 

For  the  same  reason  heresy  also  came  under  the  ban.  This 
crime  consisted  "not  in  a  total  denial  of  Christianity,  but  of 
some  of  its  essential  doctrines  publicly  and  obstinately 
avowed."  ^  What  should  be  adjudged  heresy  was  left  to  the 
ecclesiastical  courts  which  had  almost  arbitrary  power;  and 
these  courts,  being  dependent  on  the  government  rather  than 
answerable  to  the  people,  were  used  by  the  powers  to  their 
own  ends.  "it  is  true  that  the  sanctimonious  hj^pocrisy  of 
the  canonists  went  at  first  no  farther  than  enjoining  penance, 
excommunication,  and  ecclesiastical  deprivation  for  heresy; 
though  afterwards  they  proceeded  boldly  to  imprisonment  by 
the  ordinary,  and  confiscation  of  goods  in  pios  usus.  But  in 
the  meantime  they  had  prevailed  upon  the  weakness  of  bigoted 
princes  to  make  the  civil  power  subservient  to  their  purposes, 
by  making  heresy  not  only  a  temporal  but  even  a  capital 
offence  ...  for  by  statutes  9  and  10,  William  III,  c.  32,  if  any 
person  educated   in   the  Christian  religion  or  professing  the 

^  IV  Blackstone  (Cooley  Ed.)  sees.  43,  44. 
*  IV  Blackstone  (Cooley  Ed.)  sec.  45. 


84  Rights  of  Citizens  [§  61 

same,  shall,  by  writing,  printing,  teaching,  or  advised  speaking, 
deny  any  one  of  the  persons  in  the  holy  trinity  to  be  God, 
or  maintain  that  there  are  more  gods  than  one,  he  shall 
undergo  the  same  penalties  to  be  inflicted  on  apostasy  by  the 
same  statute."^ 

A  national  church  having  been  estabUshed,  nonconformity 
deprived  the  recalcitrants  of  many  of  their  rights.  Says  the 
commentator:  "If  through  weakness  of  intellect,  through  mis- 
directed piety,  through  perverseness  and  acerbity  of  temper, 
or  (which  is  often  the  case)  through  a  prospect  of  secular 
advantage  in  herding  with  a  party,  men  quarrel  with  the 
ecclesiastical  establishments,  the  civil  magistrate  has  nothing 
to  do  with  it,  imless  their  tenets  and  practice  are  such  as  to 
threaten  ruin  or  disturbance  to  the  state.  He  is  bound  indeed 
to  protect  the  established  church,  and  if  this  can  be  better 
effected  by  admitting  none  but  its  genuine  members  to 
offices  of  trust  and  emolument,  he  is  certainly  at  liberty  so 
to  do  ."2 

Opposing  or  reviling  the  ordinances  of  the  established 
church  was  considered  "  a  crime  of  much  grosser  nature  than  the 
other  of  mere  nonconformity,  since  it  carries  with  it  the  utmost 
indecency,  arrogance,  and  ingratitude;  indecency,  by  setting 
up  private  judgment  in  virulent  and  factious  opposition  to 
pubHc  authority;  arrogance,  by  treating  with  contempt  and 
rudeness  what  has  at  least  a  better  chance  to  be  right  than  the 
singular  notions  of  any  particular  man;  and  ingratitude,  by 
denying  that  indulgence  and  undisturbed  liberty  of  conscience 
to  the  members  of  the  national  church  which  the  retainers  of 
every  petty  conventicle  enjoy.  "^ 

61.  Malicious  Thought  toward  Government  as  a  Crime 
Such  were  the  restrictions  at  common  law  upon  speech,  press, 
and  action  relative  to  the  established  church.    In  the  same 

1 IV  Blackstone  (Cooley  Ed.)  sees.  4S-So. 
2  IV  Blackstone  (Cooley  Ed.)  sees.  52,  53. 
8  IV  Blackstone  (Cooley  Ed.)  sec.  50. 


§62]  Libel  of  Government  85 

manner  the  Sovereign  wove  about  himself  and  coiu-tiers  the 
legal  fabric  of  treason.  It  is  written  by  Plutarch  that  Diony- 
sius  executed  a  subject  for  having  dreamed  that  he  had  killed 
him.  Edward  IV  convicted  a  citizen  of  London  for  having 
said  that  he  would  make  his  son  heir  to  the  Crown  —  the 
Crown  being  the  sign  of  the  house  in  which  he  lived  ;^  and 
again  another,  whose  favorite  buck  had  been  killed  by  the 
Kling  while  hunting,  was  convicted  of  treason  for  wishing  it, 
horns  and  all,  in  the  King's  belly .^  In  order  to  guard  the  King's 
household  against  suspicion  of  bastardy,  it  was  made  treason 
"if  a  man  do  violate  the  King's  companion  (wife), or  the  King's 
eldest  daughter  unmarried,  or  the  wife  of  the  King's  eldest 
son  and  heir;"^  so  also  copying  the  King's  great  and  private  seal, 
and  counterfeiting  the  King's  money,'*  etc.  The  lengths  to 
which  the  King  might  go  in  this  particular  and  the  indefinite- 
ness  of  the  law  caused  a  violent  reaction  against  this  assumption 
of  power  as  a  menace  to  popular  Uberty. 

62.  Libel  against  the  Government 

Another  class  of  thinking  for  which  the  citizen  was  held 
responsible  under  a  regime  of  absolutism  falls  under  what  was 
known  to  the  common  law  as  libel  against  the  government. 
Says  Cooley:  "At  the  common  law  it  was  indictable  to  publish 
anything  against  the  constitution  of  the  country,  or  the  estab- 
lished system  of  government.  The  basis  of  such  a  prosecution 
was  the  tendency  of  publications  of  this  character  to  excite 
disaflfection  with  the  government,  and  thus  induce  a  revolu- 
tionary spirit.  The  law  always,  however,  allowed  a  calm  and 
temperate  discussion  of  public  events  and  measures,  and  recog- 
nized in  every  man  a  right  to  give  any  public  matter  a  candid, 
full,  and  free  discussion.  It  was  only  when  a  publication  went 
beyond  this  and  tended  to  excite  tumult  that  it  became  criminal. 

^  IV  Blackstone,  Commentaries,  sec.  80. 

*  IV  Blackstone,  Commentaries,  sec.  80. 
'  IV  Blackstone,  Commentaries,  sec.  81. 

*  IV  Blackstone,  Commentaries,  sec.  84. 


86 


Rights  of  Citizens 


■§63 


It  cannot  be  doubted,  however,  that  the  common-law  rules 
on  this  subject  were  administered  in  many  cases  with  great 
harshness.  .  .  .  This  was  especially  true  during  the  long  and 
bloody  struggle  with  France,  at  the  close  of  the  last  [eighteenth] 
and  beginning  of  the  present  [nineteenth]  century,  and  for  a 
few  subsequent  years,  until  a  rising  pubhc  discontent  with 
pohtical  prosecutions  began  to  lead  to  acquittals."  ^  In  this 
Cooley  seems  to  have  stated  the  hostility  of  the  government 
too  mildly.  It  is  difficult  to  justify  his  conclusion  that,  "the 
law  always  allowed  a  calm  and  temperate  discussion,"  unless 
it  be  assumed  that  it  is  for  the  government  to  determine 
what  is  "calm  and  temperate." 

What  has  been  said  of  the  law  of  libel  may  be  said  of 
slander  and  the  fact  that  what  was  spoken,  written,  or 
published  against  the  government  was  true  was  no  excuse. 
The  greater  the  truth  the  greater  the  crime,  for  if  there  be 
great  truth  in  the  statements  then  there  was  so  much  the 
miore  danger  of  the  people  becoming  disaffected  with  the 
established  order,  and  of  being  moved  to  action  in  opposition 
to  the  government. 

63.  American  Freedom  from  Restraints  on  Thought 

These  shackles,  fastened  by  a  despotic  government  upon  the 
people  to  sustain  an  order  established  for  the  benefit  of  the 
rulers  during  a  regime  of  conquest,  were  stricken  off  and  doomed 
to  perpetual  disuse  by  our  written  constitutions.  All  religious 
restraint  was  removed,  treason  was  defined,  and  the  people 
protected  from  prosecutions  for  libel  against  the  government. 
The  fundamental  theory  of  our  government  is  such  as  to  pre- 
clude such  restraints,  as  was  demonstrated  by  the  failure  of  the 
Sedition  Act  of  1798.  As  to  religion,  the  following  has  come 
to  be  the  estabhshed. doctrine:  "  The  religion,  or  the  duty  which 
we  owe  to  our  Creator,  and  the  manner  of  discharging  it,  can 
be  directed  only  by  reason  and  convection,  not  by  force  and 

^  Cooley,  T.  M.,  Constitutional  Limitations,  sec.  427.  See  also  Hallam's 
Constitutional  History  of  England  (Harper's  ed.),  p.  582. 


§63]  Freedom  of  Thought  87 

violence;  and,  therefore,  all  men  are  equally  entitled  to  the  free 
exercise  of  religion  according  to  the  dictates  of  conscience;  and 
that  it  is  the  mutual  duty  of  all  to  practise  Christian  forbear- 
ance, love,  and  charity  towards  each  other.  That  no  man 
ought  of  right  to  be  compelled  to  attend  any  religious  wor- 
ship, or  erect  or  support  any  place  of  worship,  or  maintain 
any  ministry  contrary  or  against  his  own  free  will  and  con- 
sent." The  church  and  state  have  been  forever  separated  in 
our  polity. 

Treason  agamst  the  United  States  has  been  defined  as  con- 
sisting "only  in  le\'ying  war  against  them,  or  in  adhering  to 
their  enemies,  or  giving  them  aid  or  comfort."  For  the  pro- 
tection of  the  people  against  prosecutions  for  Hbel,  provisions 
have  been  made,  such  as:  "In  all  crkninal  prosecutions  for 
Ubel,  the  truth  may  be  given  in  evidence  to  the  jury;  and  if  it 
shall  appear  to  the  jury  that  the  subject  matter  charged  as 
libelous  is  true,  and  was  published  with  good  motives  and  for 
justifiable  ends,  the  party  charged  shall  be  acquitted."  ^  In 
many  of  the  constitutions,  in  order  that  prosecution  of  this 
kind  shall  be  taken  out  of  the  hands  of  organized  departments 
of  government,  so  far  as  possible,  it  is  further  provided  that 
"the  jury  shall  have  the  right  to  determine  the  law  and  the 
fact,"  2  while  in  others  this  guarantee  is  still  further  extended 
by  including  "  all  suits  and  prosecutions,  civil  and  criminal." ' 

»  Ark.,  1874,  II,  6;  1868,  1,  2;  Fla.,  1868,  I,  10;  1885,  D.  of  R.,  13;  111., 
1818,  VIII,  23;  1848,  XIII,  24;  Ind.,  1816,  I,  10;  1851;  Iowa,  1846,  I,  7; 
1857, 1,  7;  1890,  III,  13;  Kans.,  185s,  1, 11;  1858,  I;  1859,  B.  of  R.,  11;  1868, 
I,  4;  Mich.,  1908,  VI,  18;  Neb.,  1875,  I,  5;  Nev.,  1864,  I,  9;  Ohio,  1851,  I, 
11;  Okla.,  1907,  II,  22;  W.  Va.,  1861,  II,  5;  1861,  II,  5;  1872,  III,  8. 

2  Cal.,  1849,  I,  9;  Del.,  1792,  I,  s;  1831,  I,  5;  Ind.,  1816,  10;  Ky.,  1792, 
XII;  1799,  X,  8;  1850,  XIII,  10;  Me.,  1820,  I,  4;  Mich.,  1835,  I,  7;  Miss., 
1817,  I,  8;  1832,  I,  8;  1868,  I,  4;  Neb.,  1866,  I,  3;  N.  J.,  1844,  I,  5;  N.  Y., 
1821,  VII,  8;  1846, 1,  8;  Ohio,  1802,  VIII,  6;  Penn.,  1790,  IX,  7;  1838,  IX,  7; 
1873, 1.  7;  Tenn.,  1796,  XI,  19;  1834, 1,  19;  1870,  L,  19;  Tex.,  1838,  D.  of  R., 
4;  1845, 1,  6;  1866, 1,  6;  1868, 1,  6;  1876, 1,  8;  1S83, 1.  8;  Wis.,  1848, 1,  3. 

»  Colo.,  1876,  II,  10;  Conn.,  1818,  I,  7;  Ga.,  i860,  I,  19;  111.,  1870,  II, 
4;  La.,  1898,  179;  Mo.,  1820,  XIII,  16;  1865,  I,  27;  187s,  II,  14;  Mont, 
1889,  III,  10;  Nev.,  1864,  I,  9;  N.  D.,  1889,  I,  9;  R.  I.,  1842,  I,  20;  S.  D., 
1889,  VI,  s;  Wyo.,  1889, 1,  20. 


88  Rights  of  Citizens  [§63 

In  several  of  the  new  state  constitutions  during  the  revolu- 
tionary period,  guarantees  against  their  own  government 
were  scarcely  thought  of.  Some  are  entirely  devoid  of  a  bill 
of  rights,  and  had  they  remained  independent  it  is  probable 
that  such  provisions  would  at  first  have  been  less  frequently 
employed.  The  constitution  of  the  United  States,  as  it  left 
the  constitutional  convention,  contained  very  few  of  the  guaran- 
tees commonly  found  in  a  bill  of  rights.  The  necessity  for 
such  provision  seems  to  have  been  little  felt  by  the  delegates. 
The  organization  of  a  federal  government,  however,  revived  the 
fear  of  governmental  encroachments  that  had  darkened  the 
history  of  England  and  other  European  nations.  The  states 
adopting  the  federal  constitution  demanded  the  additional 
guarantees,  and  first  among  these  is  found  the  guarantee  that 
"Congress  shall  make  no  law  .  .  .  abridging  the  freedom  of 
speech  or  of  the  press,  or  the  right  of  the  people  peaceably 
to  assemble."  ^  In  the  contest  between  the  parties  favoring 
and  opposing  the  adoption  of  the  federal  constitution,  the 
lack  of  guarantees  for  the  freedom  of  the  citizen  against  re- 
pressive acts  on  the  part  of  the  general  government  appealed 
to  the  people  with  such  force  that  it  was  only  after  an  under- 
standing was  had  that  such  guarantees  would  be  adopted 
as  amendments  that  the  federal  scheme  finally  became 
operative. 

The  federal  government  having  been  restrained,  it  only 
remained  for  the  people  of  the  several  states  in  framing  their 
various  constitutions  to  impose  such  limitations  there  as  they 
thought  necessary.  In  Pennsylvania,  1790,  the  limitations 
relative  to  free  speech  and  free  press  took  the  following  form: 
"That  the  printing  presses  shall  be  free  to  every  person  who 
undertakes  to  examine  the  proceedings  of  the  legislature  or 
any  branch  of  government,  and  no  law  shall  ever  be  made  to 
restrain  the  right  thereof."  "The  free  communication  of 
thoughts  and  opinions  is  one  of  the  invaluable  rights  of  man, 
and  every  citizen  may  freely  speak,  write,  and  print  on  any 
^  Constitution  of  the  United  States,  Amend.  I. 


§63]  Freedom  of  Thought  89 

subject,  being  responsible  for  the  abuse  of  the  liberty."  ^  In 
Kentucky  2  (1792,  1799,  1850,  and  1892),  Delaware^  (1792 
and  1831),  Ohio"  (1802),  Indiana^  (1816),  and  Illinois ^  (1818 
and  1848)  these  guarantees  took  the  same  form.  In  other 
states  the  special  privilege  granted  to  "persons  who  undertake 
to  examine  the  proceedmgs  of  the  legislature  or  any  branch 
of  government"  was  eliminated,  and  only  the  more  general 
guarantee  expressed  —  that  "every  citizen  may  freely  speak, 
write,  or  publish  his  sentiments  on  all  subjects,  being  responsi- 
ble for  the  abuse  of  the  Hberty.''" 

In  nearly  every  instance  some  form  of  limitation  is  at  present 
found.  These  guarantees,  however  broad  and  sweeping  they 
may  seem,  did  not  give  the  desired  protection.  In  most  of 
them,  it  may  be  noticed,  such  clause  as  "  being  responsible  for 
the  abuse  of  the  liberty  "  may  be  found.  Under  the  common 
and  statute  law  of  England  this  responsibiUty  was  more  than 

1  Penn.  Const.,  1790,  IX,  7. 

2  Ky.  Const.,  1792,  XII;  1799,  X,  7;  1850,  XIII,  9;  1892,  B.  of  R.,  8. 

3  Del.  Consts.,  1792,  I,  5;  1831,  I,  5. 
<  Ohio  Const.,  1802,  VIII,  6. 

6  Ind.  Const.,  1816, 1,  9. 

6  111.  Const.,  1818,  VIII,  22;  1848,  XIII,  23. 

»  Ala.,  1819,  I,  8;  1865,  I,  5;  1867,  I,  6;  1875,  I,  5;  1901,  I,  4;  Cal.,  1849, 
I,  9;  Colo.,  1876,  II,  10;  Conn.,  1818,  I,  5;  Fla.,  1838,  I,  5;  1865,  I,  5;  1868, 
I,  10;  Ga.,  1865,  I,  6;  1868,  I,  9;  Ida.,  1889, 1,  9;  111.,  1870,  II,  4;  Ind.,  1851, 
I,  9;  La.,  1846,  I,  7;  1857, 1,  7;  Kans.,  1855, 1,  11;  1857,  B.  of  R.,  7;  1858, 1, 
11;  1859,  B.  of  R.,  11;  La.,  1852,  106;  1845,  no;  1864,  in;  1868, 1,  4;  1898, 
B.of  R.,  3;  Me.  1820, 1,  4;  Md.,  1864,  B.of  R.,  40;  1867,  B.  of  R.,  40;  Mich., 
1835,  I,  7;  1850,  IV,  42;  1908,  II,  4;  Minn.,  1857,  I,  3;  Miss.,  1817,  I,  6; 
1832,  I,  6;  1868,  I,  4;  Mo.,  1875,  II,  14;  Mont.,  1889,  III,  10;  Neb.,  1866, 
I,  3;  ^875, 1,  5;  Nev.,  1864, 1,  9;  N.  J.,  1844, 1,  s;  N.  Y.,  1821,  VII,  8;  1846, 
I,  8;  N.  D.,  1889, 1,  9;  Ohio,  1851, 1,  11;  Ore.,  1907,  B.  of  R.,  23;  Ore.,  1857, 
I,  8;  Penn.,  1776,  B.  of  R.  XII;  1790,  IX,  7;  1838,  IX,  7;  1873, 1,  7;  S.  C, 
1868,  I,  7;  S.  D.,  1889,  VI,  s;  Tex.,  1838,  B.  of  R.,  4;  1845,  I;  1866,  I,  5; 
1868,  I,  5;  1876,  I,  8;  1883,  I,  8;  Vt.,  1777,  I,  M;  1786,  I,  15;  i793,  I,  13; 
Va.,  1870, 1,  14;  Wash.,  1889, 1,  5;  Wis.,  1848, 1,  3;  Wyo.,  1889, 1,  20. 

Ark.,  1836,  II,  7;  1868,  I,  2;  1874,  11,6;  111.,  1818,  VIII,  22;  1848,  XIII, 
23;  Ind.,  1816,  I,  9;  Ky.,  1792,  XII;  1799,  X,  7;  1850,  XIII,  9;  1892,  B, 
of  R.,  8;  La.,  1812,  VI,  21;  Mo.,  1820,  XIII,  16;  1865,  I,  27;  Penn.,  1790, 
IX,  7;  1838,  IX,  7;  1873,  I,  7;  Tenn.,  1796,  XI;  1817,  I,  19;  1834,  I,  19; 
1870, 1,  19. 


go  Rights  of  Citizens  [§  64 

an  ordinary  American  wished  to  assume.  The  laws  against 
Ubel,  treason,  apostasy,  heresy,  nonconformity,  and  opposing 
the  ordinances  of  the  estabHshed  church,  and  the  severity  of 
the  government  in  construing  these  laws,  were  such  as  to 
make  necessary  a  definition  as  to  what  might  be  considered 
an  "abuse."  Under  the  regime  of  absolutism,  from  which  the 
state  was  at  that  time  rapidly  emerging,  every  force  had  been 
employed  in  the  interests  of  those  in  power.  They  owed  their 
position  to  conquest;  and  it  was  of  the  highest  importance  to 
them  that  the  established  polity  should  not  be  disturbed. 

64.   Right  of  Petition 

In  most  governments,  however  arbitrary,  there  is  in  practice 
in  many  cases  a  recognized  right  of  petition  to  the  government, 
for  aid,  for  relief,  for  the  righting  of  wrongs.  One  of  the  com- 
monest objects  of  a  public  meeting  is  to  prepare  such  a  peti- 
tion which  shall  be  backed  up  by  the  weight  of  numbers  and 
of  widespread  opinion.  Hence  in  the  federal  constitution  and 
in  many  state  constitutions  the  right  of  petition  is  expressly 
guaranteed. 

The  right  of  subjects  to  petition  their  rulers  was  acquired 
by  the  English  nation  only  after  a  severe  struggle.  It  finally 
became  a  constitutional  right  when  it  was  introduced,  as  one 
of  the  important  provisions  of  the  Bill  of  Rights  of  1689. 
This  provision  asserted  that  it  is  the  right  of  the  subjects  to 
petition  the  King,  and  that  all  commitments  and  prosecutions 
for  such  petitioning  are  illegal.  The  American  colonists  treas- 
ured this  right  of  Englishmen;  they  exercised  it  in  their  peti- 
tions to  the  Crown  and  ParHament  in  1765,  1774,  and  1775, 
and  when  independence  was  declared  and  the  colonies  adopted 
state  constitutions,  they  inserted  this  right  in  the  fundamental 
law  of  their  written- constitutions  as  a  part  of  the  bill  of  rights. 
The  Massachusetts  provision  may  be  taken  as  typical:  "The 
people  have  a  right,  in  an  orderly  and  peaceable  manner,  to 
consult  upon  the  common  good,  give  instructions  to  their 
representatives,  and  to  request  the  Legislative  body,  by  means 


§65]  Right  to  Carry  Arms  91 

of  addresses,  petitions,  or  remonstrances,  to  redress  wrongs 
done  them,  and  of  the  grievances  they  suffer."  ^  Similar 
provisions  have  been  introduced  in  all  of  the  state  constitutions 
since  adopted.  This  right  was  omitted  from  the  federal  con- 
stitution in  common  with  other  fundamental  rights  of  citizens, 
but  the  popular  demand  was  so  great,  that  of  the  ten  amend- 
ments adopted  by  the  states,  one  amendment  provided  that 
"Congress  shall  make  no  law  .  .  .  abridging  ...  the  right 
of  the  people  peaceably  to  assemble  and  to  petition  the  govern- 
ment for  the  redress  of  grievances."  ^ 

The  right  of  petition  and  instruction  of  representatives  was 
especially  valued  in  those  states  where  the  town  meetings 
accustomed  the  voters  to  take  an  active  part  in  government. 
Hence  most  of  the  New  England  states  have  made  pro\dsion 
for  a  legal  method  of  calling  together  the  citizens  to  consider 
their  grievances  and  for  the  formulation  of  petitions  and  instruc- 
tions for  their  correction.  In  many  of  the  New  England  towns 
and  cities,  a  general  meeting  of  the  citizens  must  be  called 
upon  the  requisition  of  a  small  number  of  voters,  to  consult 
upon  the  common  good  and  to  give  instructions  to  their 
representatives. 

65.  The  Right  to  Carry  Arms 

The  ability  to  wage  successful  warfare  is  essential  to  the 
exercise  of  sovereignty.  Under  a  regime  of  absolutism  sover- 
eignty resides  in  the  monarch.  Since  such  a  regime  is  estab- 
lished by  conquest,  the  people  occupy  the  position  of  subjects 
only.  For  the  maintenance  of  a  monarchical  regime  it  is 
necessary  to  support  a  standing  army  which  may  at  any 
time,  if  need  be,  not  only  be  used  to  enforce  the  mandates 
of  the  sovereign  in  his  dealings  with  his  subjects,  but  also 
to  enforce  obedience  on  the  part  of  his  civil  servants.  The 
fact  that  such  a  regime  is  dependent  for  support  on  a  non- 
military  class,  however,  has  always  made  the  monarch,  in  a 
measure,  subservient. 

1  Constitution  of  Mass.,  1780,  pt.  I,  Art.  XIX. 
'  Federal  Constitution,  Am.  I. 


92  Rights  of  Citizens  [§65 

In  the  contest  between  absolutism  and  self-government  a 
question  at  issue  has  always  been  one  of  control  over  the  means 
of  obtaining  support.  Under  the  feudal  regime  the  barons 
were  made  the  head  of  local  civil  jurisdiction  and  as  such  were 
compelled  to  support  the  King  in  time  of  war.  It  was  made 
their  duty  to  organize  and  maintain  what  roughly  corresponds 
to  our  state  mihtia.  The  first  conflict,  therefore,  between  the 
monarch  and  those  who  represent  the  means  of  support  was 
foimd  in  the  leadership  of  the  barons.  Under  John  an  effec- 
tive protest  was  made  against  his  use  of  the  military  power  of 
England.  This  took  the  form  of  resisting  the  use  of  the  local 
militia,  which  had  been  organized  and  maintained  by  the 
barons,  in  prosecution  of  foreign  wars.  In  this  is  found  one  of 
the  leading  causes  which  led  to  the  conference  at  Runnymede 
and  to  the  promulgation  of  Magna  Charta. 

The  bearing  of  arms  began  as  a  duty  growing  out  of  the  rela- 
tion of  subservience  to  the  King,  but  as  soon  as  there  was  a  con- 
flict between  the  monarch  and  the  poHtically  organized  locaUty 
from  which  he  obtained  his  support,  it  was  asserted  by  the  barons 
(the  representatives  of  local  government)  as  a  constitutional 
right.  So  too  when  popiilar  sovereignty  came  to  urge  its  claims 
against  the  established  government,  what  had  been  claimed 
through  the  barons  and  granted  by  King  John  and  his  succes- 
sors was  later  asserted  as  the  right  of  the  individual  citizen. 

All  this  experience  finds  ample  expression  in  our  declarations 
of  popular  sovereignty  and  in  our  constitutions.  The  inhibi- 
tion laid  against  the  government  as  expressed  in  the  EngUsh 
Bill  of  Rights  is  as  follows:  "That  the  subjects  which  are 
Protestants  may  have  arms  for  their  defence  suitable  to  their 
conditions  and  as  allowed  by  law."  Of  similar  import,  but 
without  religious  bias,  was  the  Declaration  of  Rights  in  Massa- 
chusetts. "The  people  have  a  right  to  keep  and  bear  arms  for 
common  defence.  And  as  in  time  of  peace  armies  are  dangerous 
to  Hberty,  they  ought  not  to  be  maintained  ^\-ithout  the  consent 
of  the  legislature;  and  the  military  power  shall  always  be  held 
in  an  exact  subordination  to  the  ci^il  authority  to  be  governed 


I 


§65]  Right  to  Carry  Arms  93 

by  it."  The  right  to  bear  arms  either  in  defence  of  themselves 
or  of  the  state  or  both  has  been  asserted  by  the  people  in  thirty- 
three  of  our  state  constitutions;  it  is  directly  implied  in  three 
others.^ 

One  of  the  most  conspicuous  examples  of  the  virtue  of  such 
a  provision  is  found  in  the  defence  of  the  Transvaal  Republic 
against  what  by  it  was  regarded  as  the  aggression  of  Eng- 
land. 2  This  small  South  African  community,  -vvathout  a  stand- 
ing army,  poorly  armed  for  defence  except  in  the  ability  of 
each  citizen  to  carry  a  rifle,  withstood  for  months  the  attempts 
of  EngHsh  soldiery,  equipped  with  every  modern  device  for 
conquest,  backed  by  an  empire  of  resources;  and  it  was  only 
after  the  military  forces  which  were  placed  in  the  field  against 
the  Boers  outnumbered  the  whole  population,  including  men, 
women,  and  children,  that  self-government  was  wrested  from 
their  hands.  Unanimity  of  purpose  and  the  ability  of  the 
citizen  to  bear  arms  are  the  very  foundation  of  national 
defence.  There  is  no  professional  military  organization  that 
can  equal  it. 

Self-government  requires  adequate  means  for  effectively 
organizing  and  maintaining  military  forces  when  needed  as 
well  as  a  civil  establishment.  In  doing  this,  however,  great 
care  has  been  taken  to  make  the  miUtary  subordinate  to  the 
civil  establishment  and  to  prevent  armed  forces,  under  ambi- 
tious leadership,  from  overturning  the  institutions  which  have 
been  established  for  the  welfare  of  the  people.  Back  of  this 
organization  are  the  three  well-established  principles:  (i) 
That  there  shall  be  no  standing  army  except  such  as  may  be 
authorized  by  the  legislature;  (2)  That  the  support  of  the 
military  organization  shall  be  intrusted  to  the  legislative  branch, 
the  command  only  being  intrusted  to  the  executive;  (3)  That 
as  between  the  state  and  federal  government  the  control  of 
each  executive  must  be  limited. 

*  Stimson,  F.  J.,  Federal  and  State  Constitutions,  p.  146. 

*  Cleveland,  F.  A.,  The  South  African  Conflict  {Am.  Acad,  of  Pol.  Set., 
1900,  vol.  XV,  p.  I.) 


94  Rights  of  Citizens  [§  65 

These  principles  are  brought  out  in  all  our  constitutions,  the 
federal  charter  prov'iding  that  the  President  shall  not  have 
power  to  declare  war;  nor  to  raise  and  support  armies;  nor  shall 
he  have  power  to  call  out  the  state  militia  except  on  emergency 
for  the  national  defence;  nor  to  use  the  armed  forces  for  quell- 
ing local  disorder  except  on  request  of  the  state  executive. 
Under  our  constitutions,  state  and  national,  the  militia  is 
regarded  as  the  military  mainstay  of  the  Republic.  This  is 
the  principle  instilled  by  English  and  Colonial  experience, 
which  gave  ample  cause  for  resisting  every  effort  to  raise  and 
keep  a  standing  army  in  time  of  peace,  except  such  as  might  be 
provided  by  Parliament,  and  which  has  found  expression  in 
most  of  our  bills  of  rights  and  constitutions  in  some  such  lan- 
guage as  follows:  "That  a  well-regulated  militia,  composed  of 
a  body  of  the  people,  trained  to  arms,  is  the  proper  and  natural 
self-defence  of  a  free  state;  that  standing  armies  in  time  of 
peace  should  be  avoided  as  dangerous  to  liberty;  and  that  in 
all  cases  the  military  should  be  under  strict  subordination  to 
and  governed  by  the  civil  power."  To  this  end  the  Constitu- 
tion of  the  United  States  gives  the  power  to  Congress  "  to  raise 
and  support  armies,"  but  with  the  restriction  that  "no  appro- 
priation of  money  to  that  use  shall  be  for  a  longer  term  than 
two  years."  It  further  gives  to  Congress  the  power  "to  make 
rules  for  the  government  and  regulation  of  the  land  and  naval 
forces"  and  "to  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrections  and  repel  inva- 
sions." These  two  provisions  —  the  right  to  bear  arms 
and  specific  restrictions  on  the  government  with  respect  to 
the  manner  in  which  the  armed  forces  are  to  be  used  — 
are  among  the  essential  principles  invoked  by  constitutional 
democracy. 

The  important  relation  of  the  ability  to  use  armed  forces  in 
the  exercise  of  popular  sovereignty  is  expressed  in  the  second 
amendment  to  the  federal  constitution:  "A  well-regulated 
militia,  being  necessary  to  the  security  of  a  free  state,  the  right 
of  the  people  to  keep  and  bear  arms,  shall  not  be  infringed." 


§66]  Right  of  Assembly  95 

66.  The  Right  of  Assembly 

The  right  of  assembly  is  one  of  the  first  concessions  obtained 
by  Englishmen  striving  with  the  Crown  under  a  regime  of 
absolutism.  What  was  won  as  a  concession  was  thereafter 
reserved  as  the  right  of  the  sovereign  people  —  citizens  ex- 
pressed this  right  and  placed  upon  oflEicers  Umitations  of  power 
in  their  written  constitution.  This  does  not  mean  simply  that 
voters  may  meet  to  discuss  and  to  vote,  but  that  all  the  people, 
men,  women,  and  children,  persons  of  all  ages  and  conditions, 
may  come  together  for  any  lawful  purpose. 

Such  guarantees  are  obviously  necessary,  in  order  that  the 
pubhc  mind,  the  spiritual  force  which  guides  and  moves  the 
body  politic,  shall  be  brought  into  direct  communication  with 
its  many  parts;  that  it  may  avail  itself  of  the  experience  and 
know  the  needs  of  the  many  individuals  who  make  up  the  state; 
that  dissent  and  minority  views  may  be  taken  into  account. 
Means  of  social  co-ordination  are  just  as  essential  to  public 
opinion  as  is  the  nervous  system  to  the  individual.  Without 
the  nervous  system  the  brain  can  not  establish  relations  with 
the  various  parts  of  the  body  or  realize  the  experiences  of  all 
the  organs.  Without  the  nervous  system  the  body  can  not 
by  any  voluntary  process  adapt  itself  to  the  environment  in 
which  it  Uves.  Without  a  means  of  connecting  social  experi- 
ences the  citizen  mind  can  not  arrive  at  judgments  useful 
to  the  political  organism  which  it  would  serve.  Enlightened 
government  must  be  the  rational  product  of  social  experience. 
Social  experience  is  the  experience  of  all  persons  living  within 
the  jurisdiction  of  the  state.  Political  devices  erected  to  con- 
serve the  general  welfare  must  be  wrought  out  in  such  a 
manner  that  the  government  may  avail  itself  of  the  mature 
judgment  of  the  people.  To  this  end  popular  assemblies  are 
indispensable  and  the  right  of  peaceable  assembly  a  prerequi- 
site to  freedom. 

In  America,  though  assemblies  of  slaves  or  of  free  negroes 
were  for  more  than  two  centuries  in  some  communities  for- 


96 


Rights  of  Citizens 


[§66 


bidden,  the  right  of  free  men  and  women  to  meet  and  confer 
has  never  been  questioned.  Nevertheless  guarantees  were  incor- 
porated in  many  early  constitutions/  and  have  since  come  to 
occupy  a  place  in  nearly  all.^  Most  of  them  have  specifically 
prohibited  the  use  of  the  powers  of  the  government  by  adminis- 
trative agents  to  prevent  the  people  coming  together  for  any 
peaceful  purpose. 

^  Del.,  1792, 1, 16;  Ky.,  XII;  1799,  X,  22;  La.,  1898,  B.  of  R.,  5;  Mass., 
1780,  XIX;  N.  H.,  1784, 1,  32;  1792,  I,  32;  N.  C,  1776,  B.  of  R.,  XVIII; 
Ohio,  1802,  VIII,  19;  Penn.,  1776,  B.  of  R.,  XVI;  1790,  IX,  20;  Tenn., 
1796,  XI,  22;  Vt.,  1777, 1,  18;  1786, 1,  22;  1793, 1,  20. 

2  U.  S.  Const.,  Am.  I;  Ala.,  1819, 1,  22;  1865, 1,  26;  1867, 1,  27;  1875, 1,  26; 
1901, 1,  25;  Ark.,  1836,  II,  20;  1864,  II,  20;  1868, 1,  4;  1874,  II,  4;  Cal.,  1849, 
I,  10;  1880,  I,  10;  Colo.,  1876,  II,  24;  Conn.,  1818,  I,  16;  Del.,  1831,  I,  16; 
1897, 1,  16;  Fla.,  1838, 1,  20;  1865, 1,  20;  1868, 1,  11;  1885, 1,  is;  Ga.,  1865, 1, 
7;  1863,  I,  5;  1877,  I,  XXIV;  Ida.,  1889,  I,  10;  111.,  1818,  VIII,  19;  1848, 
XIII,  21;  1870,  II,  17;  Ind.,  1816, 1,  19;  1851, 1,  31;  la.,  1846, 1,  20;  1857, 1, 
20;  Kans.,  1885,  I,  3;  1857,  B.  of  R.,  18;  1858,  I,  3;  1859,  B.  of  R.,  3;  Ky., 
1850,  XIII,  24;  1891,  B.  of  R.,  I,  6;  Me.,  1820, 1, 15;  Mass.,  1780,  XXIX; 
Mich.,  1835,  I,  20;  1908,  II,  2;  Miss.,  1817,  I,  22;  1832,  I,  22;  1868,  I,  6; 
1890,  III,  2;  Mo.,  1820,  XIII. 


CHAPTER  VIII 
DUTIES  AND   RESPONSIBILITIES  OF  CITIZENS  AS  SUCH 

67.  References 

Responsibility  of  Citizens  for  Political  Conditions:  A.  T.  Had- 
ley,  Statidards  of  Public  Morality  (1907),  ch.  i;  C.  E.  Hughes,  Conditions  of 
Progress  in  Democratic  Government  (1910),  chs.  i  and  ii;  A.  T.  Hadley,  Free- 
dom and  Responsibility  (1907),  ch.  vii;  C.  W.  Eliot,  The  Conflict  between 
Individualism  and  Collectivism  in  a  Democracy  (1910);  W.  E.  Weyl,  The 
New  Democracy  (191 2),  ch.  xviii. 

Means  Provided  for  Discharging  Citizen  Duty:  W.  H.  Allen,  Effi- 
cient Democracy  (1907),  chs.  xiii  and  xiv;  W.  H.  Allen,  Woman's  Part  in 
Government  (1911);  F.  A.  Cleveland,  Chapters  on  Municipal  Administration 
and  Accounting  (1909),  chs.  i-ix,  xxi;  H.  Bruere,  The  New  City  Government 
(191 2),  chs.  V  and  xiv;  E.  Denison,  Helping  School  Children  (191 2);  P.  W. 
Kellog,  Pittsburg  Survey  (1910)- 

68.  Distinction  between  Citizen  and  Voter 
A  VERY  common  fallacy  in  the  public  mind  is  to  suppose 
that  "citizenship"  means  the  right  to  vote.  Only  a  small 
fraction  of  the  citizens  are  voters  and  some  voters  are  ahen 
non-citizens.  Even  with  what  is  called  "universal  suffrage" 
less  than  one  half  of  the  people  of  the  United  States  would  be 
electors.  On  the  other  hand,  it  is  an  equal  fallacy  to  suppose 
that  none  but  voters  and  those  eligible  for  pubUc  office  can  take 
part  in  public  affairs.  Under  a  polity  based  on  popular  sover- 
eignty every  provision  made  for  government  and  every  act  of 
government,  whether  by  voters  or  by  public  officers,  is  citizen 
business.  What  is  done  by  the  government  for  the  state  is  as 
much  the  affair  of  woman  as  of  man.  It  is  as  much  the  business 
of  a  non-elector  as  of  an  elector.  Recognizing  this  fact,  pro- 
visions have  been  made  in  the  organic  law  for  active  citizen 
participation  in  government.  Our  state  constitutions,  our 
statute  laws,  our  rules  of  equity  procedure  (where  the  constitu- 
tions and  statute  laws  fail  to  make  provision)  are  based  on  the 


98  Duties  of  Citizens  [§  69 

theory  that  citizens  at  all  times  share  responsibihty  with  the 
electorate  and  with  the  elected.  Not  only  is  the  citizen 
responsible  for  providing  the  means  for  formulating  public 
opinion,  but  also  for  impressing  opinions  on  the  electorate; 
citizens  as  citizens  are  hkewise  responsible  for  knowing  to 
what  extent  the  will  of  the  people  is  being  heeded  by  officers. 
Nor  does  citizen  responsibihty  stop  here.  Those  who  have  a 
beneficial  interest  in  the  public  corporate  trusteeship  (the 
government)  are  charged  with  the  duty  of  giving  to  officers 
continuing  support,  in  fact,  in  many  instances  with  rendering 
active  assistance  in  the  performance  of  pubHc  service.  ( ^-^   ^  {/ 

\  -  ttxC  H 

69.   Citizen  Organization  the  Forerunner  of  Democratic  Government 

As  has  been  said,  the  modern  democratic  state  is  made  up  of 
two  constituent  parts  —  Citizenship  and  Government.     In  the 
4^  state  citizen  will  is  sovereign.     Government  is  the  corporate 

>|L/Yj creature  —  the  servant  of  citizen  will.     Government,  therefore, 
^i'\        cannot  go  farther  than  citizenship  demands.     If  officers  attempt 
^^       •  to  carry  constructive  measures  beyond  what  is  demanded  of 
''  them,  they  must  incur  the  risk  of  failure  of  financial  support; 

or  what  may  be  still  more  effective,  the  permanent  retirement 
of  those  official  persons  who  have  gone  afield.  When  officers 
in  the  exercise  of  the  powers  of  their  office  run  ahead  of  citizen 
demand  in  their  efforts  to  serve,  either  the  officers  must  at 
the  same  time  take  such  steps  as  will  be  necessary  to  educate 
pubHc  opinion  up  to  the  point  of  appreciation  of  the  need, 
or  suffer  defeat  at  the  polls.  When  a  body  of  citizens  are 
appreciative  of  a  pubhc  need  that  is  not  being  met  but  which 
they  think  the  government  should  organize  and  equip  itself 
to  meet,  the  first  enterprise  to  be  undertaken  is,  not  to  con- 
vince the  officer,  but  to  organize  an  educational  campaign, 
the  end  of  which  is  to  create  an  overwhelming  pubhc  demand. 
In  this  educational  campaign  the  officer  may  be  an  important 
factor;  due  to  his  position  and  the  confidence  which  he  enjoys,  • 
he  may  be  the  most  important  factor.  He  may  be  able  to 
dramatize  the  need.    He  may  point  the  way  to  meeting  it  in 


§  7o]  Duties  and  Responsibilities  99 

a  single  utterance  with  such  force  as  to  carry  conviction. 
Possessing  this  power,  the  ofl&cer  may  assume  to  interpret  and 
to  represent  the  popular  will,  without  awaiting  the  slow  pro- 
cess of  expression  through  the  electorate.  He  may  procure 
the  enactment  of  laws;  as  an  executive  or  judicial  officer  he 
may  take  steps,  either  ministerial  or  organic  in  character,  to 
which  continuing  consent  will  be  given,  although  there  may  be 
no  precedent  whatever  for  such  action  and  no  prior  demand  for 
the  steps  taken.  In  times  of  great  need  constitutions  have  been 
so  made  and  amended.  But  one  fundamental  factor  the  officer 
cannot  overlook;  viz.,  the  popular  will  —  the  sovereignty  of 
organized  citizenship  and  the  relation  which  the  officer  himself 
bears  to  the  body  politic  as  servant. 

70.  Constitutional  Duties  and  Responsibilities  of  Citizens  as  Such 

Fundamentally,  citizens  have  two  classes  of  duties  to  perform; 
viz.,  (i)  those  which  pertain  to  citizenship  as  such,  and  (2)  those 
which  pertain  to  citizen  co-operation  in  government.  The  first 
of  these  is  the  subject  here  discussed.  The  second  will  be  dis- 
cussed in  the  chapters  which  follow. 

Provision  for  the  performance  of  duties  and  the  discharge  of 
responsibilities  of  citizens  as  such  is  found  in  the  constitutional 
guarantees  already  described;  viz.,  the  rights  of  peaceful 
assembly,  freedom  of  thought,  free  speech,  free  press,  the  right 
of  petition  and  remonstrance,  etc.  These  rights,  interpreted 
in  corresponding  terms  of  citizen  duty  and  responsibility,  may 
be  stated  as  follows: 

(i)  The  duty  to  organize  and  assemble  for  the  purpose  of 
determining  welfare  needs  and  for  the  purpose  of  providing 
whatever  means  may  be  necessary  to  develop  in  the  minds  of 
the  people  a  common  appreciation  of  what  should  be  under- 
taken by  the  government  to  promote  general  welfare. 

(2)  The  duty  to  organize  and  assemble  for  the  purpose  of 
impressing  the  ascertained  will  of  the  people  on  the 
electorate. 

(3)  The  duty  to  enforce  the  constitutional  requirements  that 


loo  Duties  of  Citizens  [§71 

records  of  public  transactions  be  kept  and  to  provide  the  means 
necessary  for  making  the  facts  known  about  what  the  govern- 
ment is  doing,  as  well  as  what  it  proposes  to  do. 

(4)  The  duty  to  instruct  officers,  as  corporate  servants, 
and  to  remonstrate  with  corporate  servants  whenever  they  may 
seem  not  to  be  doing  what  is  demanded  to  protect  the  welfare 
of  the  state. 

(5)  The  duty  to  protect  public  servants,  who  are  doing  their 
duty,  against  false  accusations  and  against  attacks  by  persons 
who,  using  their  rights  of  free  speech  and  free  press,  are  seeking, 
by  misinformation  and  by  diverting  public  attention  from  the 
truth,  to  subvert  the  goverimient  or  its  agencies  to  personal 
or  partisan  ends. 

71.   Citizen  Activities  for  Determining  Welfare  Needs 

In  another  place  considerable  space  is  given  to  the  descrip- 
tion of  the  work  of  Committees  of  Correspondence,  prior  to 
and  during  the  Revolutionary  War.^  These  were  organized 
groups  of  citizens  who  shaped  popular  thought  and  prepared 
the  country  for  co-operation  when  constitutional  guarantees 
were  denied.  They  were  the  centres  for  considering  the  un- 
written constitutional  guarantees  to  the  colonists  as  Enghsh- 
men.  They  were  the  centres  for  considering  the  citizen  welfare 
needs,  for  directing  citizen  thought  and  action  toward  the  better 
adaptation  of  the  government  for  meeting  these  needs. 

In  England,  in  France,  and  other  countries  where  monarchical 
forms  of  government  had  made  it  difficult  for  citizen  will  to 
express  itself  in  the  legislature  and  with  respect  to  citizen  needs, 
the  organization  of  citizen  committees  has  always  preceded 
group  action.  In  the  evolution  of  constitutional  government 
there  have  been  two  general  methods  of  determining  and 
establishing  governmental  policy;  viz.,  (i)  through  what  is 
called  a  budget  or  executive  proposal  to  the  legislature,  and 
(2)  through  what  is  called,  in  contradistinction,  legislative 
initiation.  The  practical  operation  of  the  first  method  has 
1  See  page  196. 


§72]  Citizen  Organizations  loi 

been  such  that  the  monarchical  form  has  usually  been  pre- 
served in  a  titular  official  class  —  the  real,  effective  executive 
and  administrative  heads  of  executive  departments  being  the 
nominees  of  a  parliament.  With  this  form  of  organization 
the  cabinet  or  the  nominees  of  the  parliament  have  sought  to 
create  agencies  for  determining  what  should  be  undertaken 
and  to  bring  this  determination  forward  as  the  policy  of  the 
executive  in  the  form  of  a  budget  for  legislative  action.  This 
has  brought  the  proposal  of  the  administration  not  only  before 
the  legislature,  but  also  before  the  country  for  discussion. 
Legislative  initiative  of  financial  measures  without  the  sub- 
mission of  an  executive  budget  has  been  employed  exclusively 
by  republics.  In  these,  monarchical  forms  having  disappeared, 
the  need  for  developing  adequate  means  for  holding  "the  gov- 
ernment" responsible  has,  in  a  measure,  been  lost  sight  of. 
Under  these  constitutions  the  executive  and  administrative 
heads  of  departments,  who  are  made  independent  of  the 
legislature,  have  done  relatively  httle  to  formulate  a  proposal 
as  to  what  should  be  undertaken  and  \A^hat  should  not. 
Although  their  constitutions  have  specifically  provided  for  the 
submission  of  the  recommendations  of  the  executive  to  the 
legislature,  questions  of  policy  have  been  left  to  the  legisla- 
tive branch  without  any  responsibility  for  initiative  being 
taken  by  the  executive  head  of  the  government.^ 

72.  Citizen  Organizations 

Commenting  on  the  contrasts  which  first  engage  the  atten- 
tion of  a  student  of  political  and  social  Hfe  in  this  country  as 
compared  with  his  own,  a  German  recently  called  attention  to 
the  large  number  of  citizen  welfare  organizations  here.  This 
is  something  that  the  European  observer  finds  it  difficult  to 
understand.  In  the  city  of  Philadelphia  the  non-governmental 
organizations,  maintained  by  voluntary  contributions,  which 

^  Wilson,  Woodrow,  Congressional  Government,  pp.  261-291;  The  Com- 
mission on  Economy  and  Efficiency  —  The  Need  for  a  National  Budget 
(H.  D.  458,  62nd  Cong.,  2d  Sess.). 


I02  Duties  of  Citizens  [§72 

are  engaged  in  welfare  work  number  over  two  thousand.  In 
the  city  of  New  York  there  are  from  two  to  three  times  as  many 
as  in  the  city  of  Philadelphia.^  These  figures,  while  they  are 
striking,  are  typical.  Many  of  the  citizen  societies  as  organized 
are  highly  speciaHzed;  others  are  quite  general  in  their  pur- 
pose. Some  are  little  more  than  social  clubs  and  devote  very 
little  time  to  the  question  of  citizen  welfare;  again,  others 
have  organized  staffs  and  are  spending  large  sums  in  original 
research,  for  the  purpose  of  learning  what  are  the  com- 
munity's problems  and  to  what  extent  the  government  is 
contributing  to  their  solution.  The  Bureaus  of  Municipal 
Research  of  New  York,  Philadelphia  and  Cincinnati  are  of 
this  type. 

From  the  viewpoint  of  the  relationship  of  citizenship  to  gov- 
ernment, the  fundamental  facts  are  these:  that  at  all  times  and 
in  every  community  there  are  many  welfare  activities  which 
are  on  the  borderline  of  judgment  as  to  whether  they  should  be 
conducted  by  private  citizens  or  by  states;  in  new  communities 
there  are  many  economic  interests  developed  which  as  a  matter 
of  common  advantage  call  forth  citizen  co-operation  before 
institutions  —  public  or  private  —  may  be  adapted  to  regularly 
handling  them;  in  every  community,  new  or  old,  changing 
conditions  are  bringing  to  attention  social  problems  affecting 
public  health  and  comfort  which  must  be  faced,  and,  if  faced 
intelligently,  it  must  be  with  knowledge  of  facts  which  heretofore 
have  not  been  developed.  In  so  far  as  these  questions  are 
taken  up  and  a  solution  reached  by  governmental  agencies 
with  the  approval  of  the  people,  well  and  good;  in  so  far  as 
they  are  not  taken  up,  the  initiative  must  come  from  organized 
citizenship;  in  so  far  as  there  is  lack  of  appreciation  of  the 
need,  or  citizens  cannot  be  organized  in  support  of  the  activity 
to  be  promoted,  then  the  initial  educational  work  must  be  done 
by  individuals  who  serve  in  the  capacity  of  pioneers.  Promi- 
nent in  this  group  of  activities  is  the  Rockefeller  Institute 
of  Medical  Research  of  New  York. 

*  See  Charities  Directory  for  the  cities  of  Philadelphia  and  New  York. 


§73]  Virility  of  Citizenship  103 

73.  Virility  of  American  Citizenship 

America  has  had  a  wonderful  laistory  in  the  number  and 
virility  of  its  citizen  agencies.  Until  the  last  few  years  the 
attitude  of  the  people  toward  the  government  was  laissez-faire. 
A  strong  presumption  was  always  in  favor  of  any  and  every 
activity  being  organized  on  a  private  basis  rather  than  by  the 
government.  So  thoroughly  ingrained  has  been  this  thought 
that  any  officer  who  has  been  progressive  in  developing  govern- 
mental work,  which  has  not  been  very  generally  discussed  and 
demanded  before  action  was  taken,  has  done  so  at  the  risk  of 
losing  the  good  opinion  of  a  majority  of  citizens.  It  has  been 
necessary  to  precede  practically  every  enlargement  of  govern- 
ment acti\dty  with  a  campaign  of  education ;  and  this  campaign 
has  usually  been  begun  and  carried  on  by  the  individual  citi- 
zens or  by  citizen  organizations  until  the  community  definitely 
recognized  that  there  was  something  which  should  be  incor- 
porated into  the  government  and  supported  by  the  state. 
With  this  mental  attitude  on  the  part  of  the  people,  it  may  be 
readily  understood  why  in  a  new  and  rapidly  changing  com- 
munity there  should  be  so  many  citizen  organizations  giving 
attention  to  citizen  needs  in  the  United  States  as  compared 
with  Germany,  France,  or  other  European  nations. 

In  this  relation  another  fact  is  worthy  of  note,  that  in  Ameri- 
can communities  there  has  been  developed  a  spirit  of  citizen 
activity  and  a  feeUng  of  individual  responsibiHty  that  is  unique. 
The  chief  reasons  for  organizing  state  activities  arc:  (i)  the 
removal  of  the  activity  to  be  undertaken  from  the  realm  of 
private  advantage  or  gain;  and  (2)  providing  adequate  funds 
for  equipment,  operation,  and  maintenance.  To  persons  of 
large  wealth  the  second  condition  is  no  handicap  to  effort. 
If,  therefore,  an  indix-idual  of  large  means  has  a  motive  to  social 
service  which  does  not  look  toward  private  gain,  there  is  no 
reason  why  the  community  may  not  be  as  well  served  by  him 
as  by  the  state,  unless  the  reason  which  lies  back  of  democratic 
government  itself  may   operate;    viz.,   the   advantage   wliich 


I04  Duties  of  Citizens  [§73 

comes  to  society  from  a  feeling  of  responsibility  which  individ- 
ual citizens  have  toward  those  who  are  charged  with  the 
administration  of  affairs.  With  all  privately  organized  benef- 
icence there  is  not  a  sense  of  proprietorship  on  the  part  of  the 
beneficiary;  there  is  not  a  sense  of  right  to  the  service.  Such 
enterprise  lacks  the  sense  of  duty  to  know  what  is  being  done, 
of  social  obHgation  to  furnish  the  funds  and  to  give  support  to 
the  efforts  of  oflScers  who  are  efficient  in  the  performance  of  duty; 
there  is  a  loss  to  society  itself  in  that  the  members  benefited  do 
not  feel  that  they  may  at  any  time  withdraw  support  from  him 
who  would  use  the  agency  for  other  than  the  highest  welfare. 

Whatever  else  may  be  said  of  American  social  ideals,  this 
conclusion  is  beyond  question:  that  citizens  who  have  acquired 
wealth  have,  to  a  degree  before  unknown  in  history,  devoted 
themselves  to  constructive  civic  education,  to  finding  out  what 
are  the  welfare  needs  of  the  community  or  the  nation,  to  found- 
ing laboratories  of  research,  to  maintaining  staffs  of  trained  ex- 
perts as  a  means  of  developing  facts  about  social  conditions, 
for  the  purpose  of  enabling  citizens  to  think  intelligently  about 
questions  of  community  welfare.  This,  too,  has  been  done 
without  pubUc  recognition  in  the  form  of  elevation  to  office  or 
to  positions  of  public  trust  —  frequently  bearing  the  oppro- 
brium which  ignorance  hurls  at  those  who  seek  to  bring  about 
the  elevation  of  their  fellowmen.  This  further  may  be  said: 
that  a  very  large  number  of  those  who  have  been  interested 
in  constructive  work  have  fully  appreciated  the  fact  that  their 
best  service  may  be  rendered  if  the  work  done  by  them  for 
the  well-being  of  society  be  regarded  only  as  educational  and 
experimental  —  that  they  assume  merely  the  duties  and  re- 
sponsibiHty  of  pioneers.  Generally  speaking,  pubhc-spirited 
men  of  means  have  sought  to  point  the  way  rather  than  per- 
manently to  perform  a  pubUc  function,  relying  on  the  people 
ultimately  to  demand  the  continuation  of  activities,  shown  to 
be  needful,  at  public  expense.  These  facts  carry  udth  them 
confidence  in  the  sanity  as  well  as  in  the  continuing  progress  of 
American  popular  sovereignty. 


§74]  American  Philanthropy  105 

74.  Public  Aspect  of  American  Philanthropy 

America  has  devoted  more  of  her  private  means  to  public 
enterprises,  voluntarily  and  in  response  to  the  call  of  citizen 
duty,  than  all  the  rest  of  the  world.  Under  the  older  and  more 
highly  institutionalized  predatory  poHty,  much  of  private  con- 
tribution has  gone  to  alleviate  individual  suffering  —  to  make 
misfortune  resulting  from  the  established  order  more  endurable 
and  hfe  less  horrible  to  those  who  were  afflicted  or  who  were 
handicapped  by  conditions  for  which  they  themselves  were 
not  responsible.  This  form  of  charity  is  still  to  be  found 
here,  but  American  citizen  activity  and  American  citizen  sup- 
port has  been  largely  constructive.  The  aim  has  been  to  find 
out  what  has  been  the  social  or  institutional  cause  of  suffering 
or  of  failure  to  succeed.  It  has  often  required  years  of  hard 
work  and  the  expenditure  of  millions  of  private  means  before 
the  social  or  institutional  cause  of  a  single  disease  or  other 
adverse  social  condition  has  been  located.  Usually  it  has 
been  the  individual  of  wealth  who  has  borne  the  cost.  When 
the  underlying  facts  have  been  ascertained  and  the  remedy 
for  the  adverse  condition  has  become  an  accepted  conclusion, 
the  community  has  usually  assumed  responsibility  for  han- 
dling the  problem  in  the  future.  Generally  speaking,  when  a 
basis  for  intelligent  action  has  been  provided,  organized  citizen- 
ship has  acted  with  wisdom  in  support  of  government  agencies 
and  activities. 

Again,  in  this  relation,  it  is  of  interest  to  note  that  citizen 
action  has  not  been  based  on  sex.  In  by  far  the  larger  number 
of  those  constructive  activities  which  have  been  devoted  to 
welfare  needs,  women  have  played  the  more  prominent  part. 
If  the  citizen  agencies  be  listed  (those  having  to  do  with  prob- 
lems of  health,  education,  morality,  and  the  like),  the  full  range 
catalogued  and  the  active  membership  of  each  analyzed,  it 
will  be  found  that  citizen  activity,  the  public  will,  the  opinion 
which  is  impressed  upon  political  parties,  has  not  found  its 
origin  or  source  in   the  qualified  electorate;    but   that   this 


io6  Duties  of  Citizens  [§§  is,  76 

public  opinion  or  citizen  will  has  been  developed  through  these 
many  social  agencies,  in  which  women  as  well  as  men  have 
played  an  important  part.  A  manhood  electorate  has  simply 
reflected  this  opinion  at  the  polls. 

75.  Provisions  Made  for  Impressing  Citizen  Will  on  the  Electorate 

This  brings  us  to  the  second  general  class  of  citizen  duties; 
viz.,  providing  some  adequate  means  for  impressing  the  will 
of  the  people  on  that  agency  of  expression  called  the  electorate 
—  the  legal  voters.  The  subject  takes  us  to  the  borderland 
between  citizenship  and  government — the  popular  sovereign  on 
the  one  hand  and  the  agency  incorporated  for  pubUc  service  on 
the  other.  To  rest^e  the  relation  between  voter  and  citizen,  the 
electorate  is  a  popular  non-oihcial  class  (usually,  but  not  always, 
citizens)  which  in  the  organization  of  government  has  been 
designated  as  the  personnel  through  which  the  will  of  the  people 
may  be  expressed  on  all  matters  that,  for  reasons  of  welfare, 
may  be  submitted  to  them.  At  the  time  the  government  was 
organized,  the  electorate  constituted  in  some  instances  not  more 
than  three  or  four  per  cent  of  the  population.  At  the  present 
time  the  electorate  constitutes  about  one-fifth.  To  the  elec- 
torate as  an  integral  part  of  government  several  later  chapters 
will  be  devoted.  It  may  be  said  that  practically  all  means 
employed  under  the  constitutional  guarantees  to  citizens  to  keep 
the  electorate  in  touch  with  conditions,  knowledge  of  which  is 
necessary  for  the  determination  of  public  questions,  have  been 
estabhshed  by  private  agencies. 

76.  Means  for  Determining  what  the  Government  is  Doing 
Under  strictly  monarchical  governments,  pubHc  affairs  are 
regarded  as  the  private  business  of  the  sovereign.  Under 
democratic  government  or  any  other  form  in  which  the  public 
is  assumed  to  have"  a  voice,  there  has  risen  a  demand  to  know 
what  is  going  on,  and  this  demand  has  been  heeded.  Hence 
the  provision  in  the  federal  and  state  constitutions  placing  the 
burden  of  responsibility  on  the  official  class  to  keep  the  citizen 


§76]  Access  to  Records  107 

informed  through  reports  or  otherwise.  Hence  the  require- 
ment that  a  legislative  journal  shall  be  kept.  Hence  the  usual 
publicity  of  meetings  of  legislative  bodies.  Hence  the  open 
courts.  Hence  the  usual  easy  access  to  presidents,  governors, 
and  mayors. 

But  this  responsibility  does  not  rest  alone  on  the  officer.  It 
does  not  excuse  a  master  who  does  not  keep  in  touch  with  what 
his  servants  are  doing  to  say  that  he  has  instructed  them  to 
report.  He  must  know  that  they  do  report  fully  and  accurately. 
The  loss  due  to  incompetence  is  his;  the  loss  due  to  waste  of 
resources  is  his.  He  must  do  more  than  rely  on  the  fidelity 
of  the  servant.  He  must  avail  himself  of  the  means  of  finding 
out  what  the  facts  are  and  then  act  in  such  manner  as  may 
be  required  to  prevent  infidehty  and  inefficiency  and  to  support 
and  reward  those  who  are  competent  and  faithful. 

To  the  end  that  evidence  may  be  available,  records  are 
required  to  be  kept.  To  the  end  that  the  citizen  may  avail 
himself  of  such  evidence  and  utilize  it  as  a  basis  for  citizen 
activity  in  reaching  conclusions  with  respect  to  the  efficiency 
of  agencies  established  or  the  creation  of  new  agencies  or  new 
methods,  very  definite  provisions  have  been  made,  ""such  as 
the  provision  found  in  section  1545  of  the  charter  of  Greater 
New  York,  which  follows: 

"All  books,  accounts,  and  papers  in  any  department  or 
bureau  thereof,  except  the  police  and  law  departments,  shall 
at  all  times  be  open  to  the  inspection  of  any  taxpayer,  subject 
to  any  reasonable  rules  and  regulations  in  regard  to  the  time 
and  the  manner  of  such  inspection  as  such  department,  bureau, 
or  officer  may  make  in  regard  to  the  same,  in  order  to  secure 
the  safety  of  such  books,  accounts,  and  papers,  and  the  proper 
use  of  them  by  the  department,  bureau,  or  officer;  in  case 
such  inspection  shall  be  refused,  such  taxpayer  on  his  sworn 
petition,  describing  the  particular  book,  account,  or  papers 
that  he  desires  to  inspect,  may,  upon  notice  of  not  less  than 
one  day  to  such  department,  bureau,  or  officer,  apply  to  any 
justice  of  the  Supreme  Court  for  an  order  that  he  be  allowed 


io8  Duties  of  Citizens  [§76 

to  make  such  inspection  as  such  justice  shall  by  his  order  author- 
ize, and  such  order  shall  specify  the  time  and  manner  of  such 
inspection." 

Prior  to  the  enactment  of  the  foregoing,  the  general  prin- 
ciple was  discussed  in  the  state  of  New  York  on  common  law 
grounds  in  the  case  of  Henry  v.  Cowell}  In  this  case  a  citizen 
and  member  of  the  municipal  corporation  of  New  York  City 
applied  for  a  writ  of  mandamus  to  compel  officers  in  charge  of 
certain  vouchers  and  contracts  on  file  in  a  department  of  the 
city  government  to  permit  the  petitioner  to  see  and  inspect 
these  vouchers  and  contracts.  The  oflficer  answered  that  the 
petitioner  demanded  the  documents  as  attorney  for  a  "citizens' 
association"  and  that  to  entitle  the  petitioner  to  see  the  docu- 
ments he  must  show  some  private  personal  interest  in  them. 
In  the  opinion  of  the  court,  Barnard,  J.,  stated  that  the  ques- 
tion involved  was  as  follows: 

"Has  a  corporator  of  a  municipal  corporation  the  right  to 
have  a  general  inspection,  and  take  copies,  of  the  pubhc  docu- 
ments and  records  of  the  corporation  of  which  he  is  a  member, 
under  such  rules  and  restrictions  as  will  preserve  the  safety  of 
the  records,  and  prevent  any  serious  interruption  of  the  duties 
of  the  custos?" 

After  a  review  of  the  authorities  and  the  principle  involved, 
the  court  answered  the  above  question  in  the  affirmative  and 
granted  the  mandamus  as  prayed  for. 

Recently  the  same  question  was  presented  to  the  highest 
court  of  the  state  "in  the  matter  of  the  appHcation  of  William 
H.  Allen,  to  examine  certain  records  on  file  in  the  Department 
of  Health  in  the  city  of  New  York."  Dr.  Allen  appeared  in 
his  own  behalf  and  for  the  Bureau  of  Municipal  Research,  a 
citizens'  organization  which  was  interested  in  obtaining  the 
facts  about  the  manner  in  which  the  health  inspection  laws 
and  ordinances  were  being  enforced  by  municipal  officers.  In 
this  connection  the  right  of  the  petitioner  was  upheld,  although 
the  court  under  the  statutes  above  quoted  prescribed  the  con- 
^  32  How.  Pr.  (N.  Y.,  1866)  149,  47  Barb.  329. 


§76]  Access  to  Records  109 

ditions  and  the  manner  of  making  the  inspection  so  as  not  to 
interfere  with  the  work  of  the  office.  It  may  be  regarded  as 
generally  settled  in  this  country  that  public  records  are  public 
property  and  as  such  are  open  to  the  inspection  of  any  person 
having  an  interest  in  them;  nor  need  this  interest  be  financial 
in  character.  It  is  enough  to  show  that  it  is  material  to  the 
welfare  of  the  citizen  or  of  the  community  in  which  he  lives. 

In  a  Jersey  case  ^  the  petitioner  for  a  mandamus  set  out  that 
he  believed  the  requirements  of  a  city  charter  were  not  being 
obeyed;  and  desiring  with  other  citizens  to  secure  due  observ- 
ance of  its  provisions,  he  had  applied  for  an  inspection  of 
relevant  documents.  The  court  pointed  out  that  the  ques- 
tion involved  must  be  decided  by  general  principles  since  there 
was  no  legislative  enactment  on  the  subject.  In  concluding 
the  court  said  that  the  petitioner  "in  his  capacity  as  inhabi- 
tant and  taxpayer  .  .  .  has  such  an  interest  in  the  proper 
observance  of  the  city  charter  .  .  .  that  he  may,  under  cer- 
tain circumstances,  Htigate  for  its  protection,  and,  in  order  to 
ascertain  whether  those  circumstances  exist,  being  actuated 
by  such  motives  as  are  disclosed  in  the  present  application,  he 
is  entitled  to  an  inspection  of  the  papers  in  question."  The 
mandamus  was  accordingly  granted.  To  the  same  effect  was 
the  decision  in  the  State  v.  King? 

While  it  seems  clear  that  a  citizen,  as  such,  has  a  right  to 
know  the  facts  about  what  is  being  done  by  the  government 
and  to  have  access  to  such  evidence  as  may  be  found  in  pubHc 
records,  it  is  frequently  made  difficult  for  him  to  avail  himself 
of  this  right.  Very  specious  pleas  may  be  entered,  such  as 
statements  to  the  effect  that  the  records  are  in  use  or  that  it 
is  not  convenient  for  the  office  or  officer  to  give  access  at  the 
time  the  citizen  may  have  opportunity  to  make  the  examina- 
tion. In  fact,  generally  speaking,  it  may  be  said  that  a  citi- 
zen single-handed  cannot  be  effective  in  a  contest  with  those 
in  authority,  whether  his  effort  be  to  obtain  access  to  pubhc 

^  Ferry  v.  Williams,  41  N.  J.  L.  332  (1879). 

2  Dillon,  Municipal  Corporations  (4th  ed.),  sec.  303;  154  Ind.,  621  (1900). 


I  lo  Duties  of  Citizens  [§  76 

records  or  to  make  use  of  information  after  it  has  been 
obtained.  It  may  be  further  said  that  generally  speaking  citi- 
zenship can  be  made  effective  only  through  organized  agencies. 
When  organized,  however,  it  is  not  necessary  for  citizens  to 
rely  on  their  right  of  access  to  records  in  order  to  obtain  infor- 
mation about  what  is  going  on,  to  become  effective  in  their 
dealings  with  public  ofl&cers.  One  or  two  instances  of  success- 
ful efforts  of  this  kind  may  be  cited.  In  1906  the  Bureau  of 
Municipal  Research  was  organized  for  the  city  of  New  York 
for  the  purpose  of  obtaining  information  which  might  serve  as 
a  basis  for  citizen  action.  Access  to  records  was  denied  by 
the  President  of  the  Borough  of  Manhattan.  Not^\dthstanding 
this  fact,  the  representatives  of  the  Bureau  obtained  such  evi- 
dence from  observation  of  work  in  progress  as  was  necessary  to 
prove  the  incompetence  of  the  officer  in  charge.  The  mayor 
brought  these  facts  to  the  attention  of  the  Commissioners  of 
Accounts.  The  result  was  that  the  Commissioners,  who  had 
proved  ineffective  for  years  in  reporting  official  derehcts,  were 
suddenly  converted  into  an  active  agency  for  making  honest  in- 
vestigations of  departments.  The  facts  developed  were  laid 
before  Governor  Hughes,  who  removed  the  Borough  Presi- 
dent of  Manhattan  for  official  incompetence  upon  the  records 
before  him  and  the  supplemental  evidence  taken.  Similar 
proceedings  taken  through  the  Commissioners  of  Accounts 
upon  evidence  of  like  kind  led  to  the  removal  of  two  other 
heads  of  pubUc  works  within  the  next  three  years.  There- 
after there  was  Httle  trouble  in  New  York  in  obtaining  access 
to  the  records  when  desired. 

Similarly,  when  the  Bureau  of  Municipal  Research  in  the  city 
of  Philadelphia  was  organized,  the  mayor  and  the  heads  of 
departments,  in  conference  with  citizens,  the  trustees  of  the 
Bureau,  stated  that  they  would  not  admit  the  representatives 
of  the  Bureau  to  any  of  the  offices  under  their  jurisdiction  with- 
out an  order  of  the  court.  Knowing  the  difficulties  and  delays 
which  would  be  entailed  in  obtaining  an  order,  it  was  decided 
by  the  local  Bureau  there  to  avail  itself  of  such  evidence  as 


§  77]  Instruction  of  Officers  1 1 1 

might  be  obtained  without  going  into  the  offices.  The  result 
was  that  within  three  months  such  facts  had  been  collected 
as  to  make  it  seem  of  advantage  to  the  director  of  one  depart- 
ment to  ask  the  co-operation  of  the  Bureau  in  the  constructive 
work  which  was  shown  to  be  needed.  Within  a  year  and  a 
half  the  records  of  every  department  of  the  city  were  open, 
since  which  time  there  has  been  a  succession  of  requests  for 
co-operation  from  pubHc  officers. 

Within  the  last  few  years  a  large  number  of  citizen  organiza- 
tions have  been  established  in  various  cities  to  keep  in  close 
touch  with  the  details  of  public  business.  Through  these  organ- 
izations definite  unbiassed  information  has  been  obtained  which 
has  not  only  been  made  available  to  citizens  at  large,  but  which 
has  assisted  materially  in  keeping  officers  in  touch  with  what 
was  being  done  by  employees  under  their  respective  jurisdic- 
tions. In  each  of  the  cities  where  such  organizations  have 
been  established,  the  officers  have  come  to  rely  on  them  for  co- 
operation in  obtaining  results  which,  without  such  active  sup- 
port, would  have  been  impossible.  To  do  this,  however, 
requires  that  citizenship  shall  place  itself  in  the  attitude  of  co- 
operation with  the  official  who  is  trying  to  do  his  duty,  instead 
of  seeking  to  use  such  information  as  is  obtained  for  the  pur- 
pose of  creating  a  public  opinion,  the  effect  of  which  would  be 
to  make  it  more  difficult  for  those  in  office  to  discharge  their 
functions  effectively, 

77.   The  Duty  of  Citizens  to  Instruct  their  Officers 

The  principle,  that  citizens  have  a  right  to  instruct  their 
corporate  agents,  is  not  only  well  estabUshed  in  the  precedents 
which  lie  back  of  constitutional  government,  but  is  expressed 
in  written  constitutions.  Exactly  what  these  instructions  shall 
be,  or  what  form  of  organization  shall  be  provided  as  a  means 
of  formulating  instructions,  has  never  been  worked  out 
except  in  so  far  as  laws  have  been  passed  which  enable  them 
to  utilize  the  electorate  for  such  purposes.  A  recent  develop- 
ment along  these  lines  is  the  provision  made  by  certain  states 


I  12 


Duties  of  Citizens 


[§78 


whereby  the  people  of  a  state  may  instruct  their  representa- 
tives with  respect  to  the  election  of  United  States  senators. 
As  is  shown  in  another  place,  the  instruction  was  nothing  more 
than  a  moral  binding  force.  The  failure  to  obey  such  instruc- 
tions, however,  would  be  nothing  short  of  poHtical  suicide. 
The  public  opinion  which  lies  back  of  such  an  expression  by  an 
electorate  is  so  well  settled  before  the  election  takes  place  that 
a  representative  could  not  mistake  what  is  desired  by  his  con- 
stituency. 

78.  The  Duty  of  Remonstrances 

The  duty  of  citizens  to  petition  or  remonstrate  when  pubhc 
ofi&cers  may  seem  not  to  be  serving  the  welfare  of  the  state  is 
direct.  It  requires  no  interposition  of  an  electorate.  Anyone 
who  has  the  intelligence  to  formulate  a  petition  or  remonstrance 
and  submit  it  can  get  his  views  before  those  who  have  been 
elected  to  ofi&ce.  The  fact  remains,  however,  that  such  remon- 
strances carry  with  them  httle  force  imless  there  is  an  efficient 
organization  back  of  them.  Petitions  and  remonstrances 
which  are  effective  are  those  which  come  from  organizations 
that  represent  the  opinion  of  a  community  or  of  a  class  in  the 
community  which  must  be  respected  in  a  government  by 
majorities. 


CHAPTER  IX 

DIRECT   PARTICIPATION   OF   CITIZENS   IN   ACTS   OF 
GOVERNMENT 

79.  References 

Bibliography:  Where  to  Look  for  the  Law  (The  Lawyers  Co-operative 
Pub.  Co.,  1909),  38,  92,  100-102,  119,  143;  L.  A.  Jones,  American  Legal 
Index  to  Periodical  Literature  (2  vols.,  1888,  1899). 

Injunctions:  C.  F.  Beach,  Injunctions  (1893),  I,  chs.  iii,  xxxviii,  xli, 
xlviii,  xlix;  C.  F.  Beach,  Modern  Equity  Jurisprudence  (1892),  II;  J.  F. 
Dillon,  Municipal  Corporations  (4th  ed.,  1890),  II,  1106,  1107;  J.  L. 
High,  Injunctions  (1890),  chs.  viii,  xiii,  x.xi,  xxix;  H.  C.  Joyce,  Injunctions 
(1909),  chs.  iii,  xxxviii,  xlviii,  xUx;  F.  R.  Mechem,  Public  Offices  (1890), 
bk.  v,  ch.  ii;  T.  C.  Spelling,  Extraordinary  Relief  (1893),  ch.  xix;  T/ie 
Lawyers  Reports  Annotated  —  esp.  XXIII,  301;   XXXII,  699;   LX,  243. 

Mandamus:  American  and  English  Encyclopcsdia  of  Law  (1901),  xix; 
J.  F.  Dillon,  Municipal  Corporations  (4th  ed.,  1890),  II,  1008-1014,  1026, 
1027,  1040,  1044;  F.  R.  Mechem,  Public  Offices  (1890),  bk.  v,  ch.  i;  J.  L. 
High,  Extraordinary  Legal  Remedies  (1896),  §§  i,  6,  8;  T.  C.  Spelling,  Ex- 
traordinary Relief  (1893),  §§  1431-1448;  Lawyers  Reports  Annotated  — 
XIV,  773;  XXIV,  492;  XLV,  457. 

Quo  Warranto:  American  and  English  Encyclopa:dia  of  Law  (1901), 
XXIII;  J.  Bouvier,  A  Law  Dictionary  (1894),  II,  498-500;  Lawyers  Reports 
Annotated,  XXIV,  806,  LX,  243;  J.  \^. 'High,  Extraordinary  Legal  Remedies, 
§§  49.  592;  F.  R.  Mechem,  Public  Offices  (1890),  bk.  ii,  ch.  ix;  J.  F. 
Dillon,  Municipal  Corporations  (4th  ed.,  1890),  §§673,  678-680,  716;  T. 
C.  Spelling,  Extraordinary  Relief  (1893),  §§  1 778-1 797. 

Citizens  and  Grand  Juries:  American  and  English  Encyclopcedia  of 
Law  (1901),  XVII;  Wm.  Blackstone,  Commentaries  (Cooleyed.,  1899),  bk. 
iv,  ch.  23,  subd.  i;  G.  J.  Edwards,  The  Grand  Jury  from  an  Historical,  Polit- 
ical a7id  Legal  Standpoint  (1906),  part  iii;  Thompson  and  Merriam,  Gratui 
Juries  (1882);   Lawyers  Reports  Annotated — esp.  XXVIII,  318,  324,  367. 

Citizens  and  Arrest:  Wm.  Blackstone,  Comtnentaries  (Cooley  ed., 
1899),  bk.  iv,  ch.  xxi;  T.  M.  Cooley,  Torts  (Student's  ed.,  1907),  163,  164, 
250-252;  H.  C.  Voorhees,  Law  of  Arrest  (1904),  chs.  vi,  vii;  A.  J.  Parker, 
Code  of  Criminal  Procedure  (1909),  §§  102,  104,  183,  887,  895;  B.  F.  Cutting, 
Church  and  Society  (191 2),  153-224. 

Not  only  does  citizenship  assume  burdens  of  sovereignty 
that  are  separate  and  distinct  from  the  exercise  of  powers  of 
government  by  those  who  have  been  elected  to  render  service, 
9 


114     Direct  Participation  in  Government     [§  80 

and  separate  and  distinct  from  the  responsibilities  that  are 
placed  on  the  qualified  electorate,  but  the  citizen  as  such  has 
laid  upon  him  the  duty  and  responsibility  of  co-operation  with 
ofl&cers.  The  rights  and  duties  of  citizens  in  this  class  are: 
(i)  to  furnish  information  and  enter  complaints  of  failure  to 
perform  official  duties  as  a  basis  for  suits  in  injunction,  man- 
damus, and  quo  warranto;  (2)  to  furnish  information  to  grand 
juries  and  prosecuting  officers  as  a  basis  of  criminal  action; 
(3)  to  perform  certain  acts,  executive,  administrative,  and  judi- 
cial in  character. 

80.   The  Duty  to  Furnish  Infonnation  as  a  Basis  for  Civil  Action 

Most  ci\dl  suits  and  actions  at  law  are  for  the  arbitration  of 
private  rights.  With  respect  to  these  nothing  need  be  said 
except  this:  that  the  government  owes  it  to  the  citizen  to  pro- 
vide the  means  for  the  peaceful  adjustment  of  property  and 
other  rights,  and  the  citizen  owes  it  to  himself  to  bring  such 
controversies  before  the  proper  officers  and  tribunals.  In  the 
past  this  has  been  done  through  private  counsel  or  persons 
trained  in  legal  practice,  who  may  serve  as  officers  of  the  court 
to  act  in  an  advisory  or  representative  capacity.  These  offi- 
cers, called  attorneys  at  law,  are  paid  directly  by  the  person 
for  whom  they  act.  The  result  of  this  form  of  court  organiza- 
tion has  been  that  persons  who  were  able  to  employ  counsel 
of  great  abiUty  and  expertness  have  been  able  to  present  their 
cases  to  the  judge  and  the  jury  much  more  completely  than 
persons  in  an  impoverished  condition  who  have  been  required 
to  employ  counsel  less  able  or  go  unadvised  and  unrep- 
resented. The  injustice  which  has  often  followed,  the  inabil- 
ity of  the  court  to  obtain  a  proper  statement  of  facts  or  to 
have  a  proper  presentation  made  of  the  case  of  the  poorer  ch- 
ent,  has  caused  many  persons  to  distrust  the  courts,  w^hile  not 
a  few  have  demanded  that  the  state  shall  employ  directly  the 
attorneys  for  litigants  and  pay  them  salaries  as  officers  of 
the  court;  that  they  shall  perform  the  same  functions  in  pri- 
vate actions  as  "  prosecuting  attorneys,"  "  attorneys  general," 


§8i]  Injunction  115 

"states  attorneys,"  and  "city  counsellors,"  perform  in  matters 
criminal  or  other  causes  of  action  in  which  the  state  is  a 
direct  party  litigant.  The  thought  is  that  in  such  event 
there  would  be  no  disparity  of  opportunity  and  no  unbalancing 
of  talent  in  the  presentation  of  causes  and  the  consideration  of 
rights  which  call  for  equitable  and  just  arbitration.  Some 
would  even  go  to  the  extent  of  forbidding  the  employment  of 
counsel  on  the  ground  that  it  is  against  public  pohcy  to  permit 
a  beneficiary  of  the  government  to  pay  a  compensation  to  an 
officer;  that  the  inevitable  result  of  such  a  practice  is  to  defeat 
the  welfare  purpose  of  the  employment  and  to  place  govern- 
ment on  the  plane  of  personal  privilege. 

But  under  the  present  and  past  systems  of  judicature  the 
citizen  has  had  certain  duties  to  perform  in  the  use  of  civil 
actions  against  officials  who  failed  to  perform  their  obligations 
to  the  pubUc.  These  citizen  duties  relate  to  the  institution 
of  injunction,  mandamus  and  quo  warranto  proceedings. 

81.  The  Citizen  in  Applications  for  Injunction 

Remedies  for  the  misconduct,  negligence,  or  usurpation  of 
public  officers  may  be  reached  by  citizens  through  appKcations 
for  suits  of  injunction,  mandamus,  and  quo  warranto.  Injunc- 
tions are  of  two  kinds:  Mandatory  and  Preventive.  A  man- 
datory injunction  is  one  that  compels  public  officers  to  restore 
things  to  their  former  condition  and  thus  compels  them  to  per- 
form an  act.^  For  a  long  time  the  jurisdiction  of  a  court  to  issue 
such  a  writ  was  questioned,^  but  it  is  now  estabUshed  beyond 
a  doubt.'  Frequently  the  end  of  a  mandatory  injunction  is 
reached  by  a  writ  apparently  prohibitory.  For  instance,  a  writ 
ordering  a  defendant  to  deliver  up  books  and  papers  in  his  pos- 
session has  been  issued  in  the  following  form:  "Let  an  injunc- 
tion be  awarded  to  restrain  the  defendant  H.  from  detaining 

1  Bispham,  Principles  of  Equity  (6th  ed.,  1899),  p.  520. 

^  Beach,  Injunctions,  115;  Blackmorc  v.  Glamorganshire  Canal  Navigation, 
I  Myl.  &  K.  184. 

'  Bispham,  p.  520;  Interstate  Commerce  v.  Lehigh  Railroad  Co.,  49  Fed. 
Rep.  117. 


ii6     Direct  Participation  in  Government     [§  8i 

and  keeping  possession  of  the  books,  deeds,  documents,  and 
papers.  .  .  ."^  This  is  in  form  a  restraining  order,  but  in 
fact  it  commands  the  defendant  to  perform  the  act  of  giving 
up  the  books. 

The  usual  aim  of  injunction,  however,  is  to  restrain  an  ofl&cer 
from  performing  an  act  which  is  contrary  to  law  or  is  injurious 
to  the  welfare  of  the  comm  unity .^  It  must  be  shown  that 
the  relator  has  no  remedy  at  law,  and  that  the  defendant  is 
committing  an  illegal  act,  or  that  such  an  act  is  threatened  and 
imminent.^  Any  person  who  is  personally  and  directly  affected 
by  an  illegal  and  harmful  act  of  a  public  officer  may  avail 
himself  of  the  protection  afforded  by  the  preventive  injunction. 
In  fact  in  some  states  a  citizen  need  not  show  that  he  is  individ- 
ually harmed  by  an  illegal  act  of  an  official;  his  interest  in  the 
protection  of  the  general  welfare  of  the  community  merely  as 
taxpayer  in  common  with  other  taxpayers  is  sufficient.  The 
right  of  a  taxpayer  to  restrain  a  public  officer  when  the  act 
harms  him  individually  is  universally  admitted  and  needs  no 
further  comment,  but  the  right  to  restrain  in  the  interests  of 
the  public  welfare  varies  as  to  the  extent  of  its  application  in 
the  different  states  and  needs  some  amplification. 

In  most  states  taxpayers  have  been  granted  the  right  of 
injunction  to  prevent  unauthorized  appropriations  and  illegal 
disposition  of  city  funds,  and,  in  the  absence  of  a  statute  impos- 
ing this  duty  upon  some  officer,  every  taxpayer  has  this  right 
according  to  some  authorities.*  For  instance,  Bayle,  a  tax- 
payer in  New  Orleans,  enjoined  the  city  from  appropriating 
city  funds  to  pay  for  the  transportation  of  the  old  Liberty  Bell 
from  Philadelphia  to  New  Orleans  for  a  centennial  exposition.^ 
Likewise  the  courts  have  granted  taxpayers  writs  of  injunction 
to  prevent  the  creation  of  illegal  debts  which  they  in  common 

'  Joyce,  Injunctions,  p.  1310. 

2  Dillon,  Municipal  Corporations,  vol.  ii,  p.  1091;  Beach,  Modern  Equity 
Jurisprudence,  vol.  ii,  p.  744;  People  v.  Canal  Board,  55  N.  Y.  390. 

'  People  V.  Canal  Board,  55  N.  Y.  390. 

*  Dillon,  Municipal  Corporations,  vol.  ii,  p.  1107. 

^  Spelling,  Injunctions  and  Other  Extraordinary  Remedies  (2d  ed.),  vol.  i,  p. 
509;  Bayle  v.  New  Orleans,  23  Fed.  843. 


§82]  Mandamus  117 

with  other  taxpayers  would  have  to  meet  eventually  through 
the  collection  of  taxes  upon  their  property.  This  view  has 
been  affirmed  by  the  Supreme  Court  of  the  United  States.^ 
Several  states,  however,  have  estabhshed  an  extreme  doctrine 
which  denies  to  an  individual  the  right  to  restrain  a  threatened 
illegal  municipal  act  that  will  result  in  increased  taxation, 
holding  that  the  remedy  must  come  from  the  initiation  of 
authorities  directly  representing  the  pubhc.^ 

Citizens  also  have  the  power,  in  a  number  of  states,  to  inter- 
fere by  injunction  in  the  interests  of  pubhc  morals,  peace,  and 
good  order.  Massachusetts  grants  ten  legal  voters  of  any  town 
or  city  the  power  to  set  forth  that  a  building,  place,  or  tene- 
ment therein  is  resorted  to  for  prostitution,  or  used  for  illegal 
sale  of  intoxicating  Hquors;  and  upon  their  relation,  the 
Supreme  Judicial  Court  and  the  Superior  Court  have  the 
power  to  restrain,  enjoin,  or  abate  the  same  as  a  common 
nuisance.^  By  a  similar  act  the  citizens  of  New  Hampshire 
are  granted  the  same  power.* 

82.  The  Citizen  in  Applications  for  Mandamus 
When  officers  fail  to  perform  duties  which  are  commanded 
by  the  constitution  and  the  laws,  or  acts  which  the  pubhc  welfare 
demands,  a  remedy  may  be  obtained  through  mandamus  pro- 
ceedings whenever  there  is  no  adequate  specffic  legal  remedy  to 
enforce  the  right  of  the  public  or  the  particular  legal  right  of 
the  relator.^  In  brief,  mandamus  is  used  in  all  cases  when  the 
law  has  established  no  specific  remedy  and  when  in  justice  and 
good  government  there  ought  to  be  one.*'  Mandamus  will  be 
denied  in  all  cases  where  the  right  of  the  relator  is  not  clear, 
and  when  the  remedy  by  ordinary  action  at  law  is  as  complete 

1  Beach,  Injunctions,  vol.  i,  p.  358;  Dillon,  Municipal  Corporations,  vol. 
ii,  p.  1106;  Cronipton  v.  Zabriskie,  loi  U.  S.  60  (1879). 
^  Beach,  Injunctions,  vol.  i,  p.  17. 

*  Mass.  Statutes,  1887,  ch.  380,  sec.  I;  Carlton  v.  Rugg,  149  Mass.  550, 
cited  in  5  L.  R.  A.  193. 

*  N.  H.  Statutes,  1887,  ch.  77,  sec.  I;  Rhode  v.  Saunders,  66  N.  H.  39. 
s  Dillon,  Municipal  Corporations,  vol.  ii,  p.  1008. 

*  Rex  V.  Barker,  3  Burr.  1265. 


ii8     Direct  Participation  in  Government     [§83 

as  by  mandamus.^  Whenever  the  right  to  the  performance  of 
a  specific  duty  is  direct  and  personal,  mandamus  is  commonly 
granted  in  any  state,  but  whenever  a  person  becomes  a  relator 
upon  the  mere  basis  of  interests  as  a  citizen,  decisions  in  the 
different  states  are  not  uniform.^ 

Mandamus  is  the  proper  remedy  to  compel  the  performance 
of  specific  ministerial  acts  whenever  a  mandatory  statute  can 
be  cited ;  ^  but  whenever  the  act  permits  discretion  in  the  per- 
formance of  a  duty,  mandamus  carmot  be  used  to  force  the 
performance  of  a  specific  thing.'* 

Mandamus  is  also  the  proper  remedy  in  controversies  relat- 
ing to  office.  It  is  the  common  remedy  for  restoring  persons 
to  office  after  the  title  to  office  has  been  established  by  quo 
warranto  proceedings.^  In  the  exceptional  case  of  Hanvood  v. 
Marshall  (Md.)  it  has  been  held  that  ouster  and  restoration 
proceedings  could  be  accomphshed  by  the  one  proceeding  of 
mandamus  upon  the  ground  that  two  proceedings  consumed 
too  much  time.^  It  may  also  be  used  to  force  appointments 
to  office;  to  force  issuance  of  commissions  of  appointment;  to 
force  administration  of  an  oath  of  office  to  another;  to  estabUsh 
sufficiency  of  bonds ;  to  force  mandatory  provisions  of  civil  serv- 
ice rules;  to  require  holding  of  offices  at  particular  places;  and 
to  force  the  dehvery  of  books  or  records  to  successors  in  office.'^ 

83.   The  Citizen  in  Applications  for  Quo  Warranto 
In  case  of  any  doubt  as  to  the  right  of  an  individual  to  an 
office,  title  to  that  office  may  be  established  by  quo  warranto 

1  Dillon,  Municipal  Corporations,  vol.  ii,  pp.  1009,  1013  Mechem,  Public 
Offices,  sec.  941. 

^  Pike  Co.  Commissioners  v.  Stale,  11  111.  202;  Ottawa  v.  People,  48  111. 
307;  People  V.  Halsey,  53  Barb.  547. 

2  12  Pet.  524;  34  Penn.  293;  26  Ga.,  665;  Dillon,  vol.  ii,  p.  1015. 
*  Dillon,  Municipal  Corporations,  vol.  ii,  pp.  1013,  1014. 

'  52  Ala.  87;  I  Burr.  402;    i  Sulk  314;  2  Head.  650;   54  Me.  95. 

'  Hanvood  v.  Marshall,  9  Md.  83  (1856).  Dillon  maintains  that  there  is 
much  to  commend  this  case  (vol.  ii,  pp.  1023,  1024). 

^  Am.  and  Eng.  Encyc.  of  Law.  (1901),  vol.  sdx,  pp.  765,  etc.;  Dillon, 
Municipal  Corporations,  vol.  ii.,  pp.  1026, 1027,  1040, 1044;  Mechem,  Public 
Offices,  sees.  952-977. 

t 


§84]  Grand  Juries  119 

or  ouster  proceedings.^  At  common  law  the  sovereign  or  the 
state  must  start  quo  warranto  proceedings.^  However,  in  many 
cases,  statutes  have  been  enacted  by  Parliament  which  grant 
individuals  the  right  to  file  information  directly.  According 
to  a  Statute  of  Anne,  interested  persons  may  become  relators  in 
case  permission  is  first  obtained  from  the  court.^ 

Similar  statutes  are  largely  in  force  throughout  the  United 
States.  In  a  few  states  a  person  claiming  a  public  ofl&ce 
is  authorized  to  bring  action  in  his  own  name,  while  in  most 
states  a  private  relator  must  bring  proceedings  in  the  name 
of  the  state.  Any  citizen  or  taxpayer  may  maintain  proceed- 
ings to  try  title  to  municipal  office.  This  has  been  held  as 
regards  the  offices  of  alderman  or  member  of  a  city  council, 
mayor,  county  superintendent  of  the  poor,  town  commissioner, 
tax  collector,  city  surveyor,  street  inspector,  etc* 

In  a  trial  for  office,  a  certificate  of  election  from  the  proper 
source  is  prima  facie  evidence  in  favor  of  the  holder,  and  in 
every  proceeding,  except  a  direct  one  to  try  the  title  of  such 
holder,  it  is  conclusive;  but  in  quo  warranto  the  court  will  go 
behind  the  certificate  and  inquire  into  the  vahdity  of  the 
election  or  appointment  and  decide  the  legal  rights  of  the 
parties  upon  full  investigation  of  the  facts.^ 

84.   Citizens  as  Informants  to  Grand  Juries 

Citizens  have  another  function  to  perform  in  court  proce- 
dures which  does  not  primarily  affect  pubhc  officers.  They 
have  a  right  and  it  is  their  corresponding  duty  to  furnish  infor- 
mation to  grand  juries  and  prosecuting  attorneys  which  may 
form  the  basis  for  indictments.  According  to  Blackstone,  the 
grand  jury  may  sit  and  receive  indictments  which  are  referred 
to  them   "at  the  suit  of   any   private  prosecutor."^      A  more 

'  Bouvier,  Law  Dictionary,  vol.  ii,  pp.  498,  499;  Mechem,  Public  Offices, 
sees.  477,  478.  ^  Am.  and  Eng.  Encyc.  of  Law  (1901),  vol.  x.\iii,  p.  618. 

^  Mechem,  Ptihlic  Offices,  sec.  488. 
^  Am.  and  Eng.  Encyc.  of  Law  (1901),  vol.  x.xiii,  p.  618. 
^  Am.  and  Eng.  Encyc.  of  Law,  vol.  xxiii,  pp.  617,  618. 
'  IV  Blackstone,  ch.  xxiii,  subd.  i. 


1 20     Direct  Participation  in  Government     [§  85       ; 

general  practice,  however,  is  for  private  persons  to  make  com- 
plaint to  a  magistrate  or  communicate  their  knowledge  to  a 
prosecuting  attorney  to  enable  him  to  prepare  an  indictment. 
The  record  need  not  show,  however,  that  the  witness  who  ap- 
pears before  the  grand  jury  was  sent  by  the  prosecuting  attor- 
ney.^ Furthermore,  no  one  can  object  to  the  testimony  of  a 
private  person  who  appeared  before  a  grand  jury  without  a 
subpoena.^ 

The  guarantee  to  citizens  and  to  taxpayers  of  the  right  of 
access  to  pubHc  records  not  only  gives  them  the  opportunity 
to  obtain  evidence  contained  therein,  but  also  places  upon  them 
a  duty  that  has  been  almost  wholly  neglected.  There  is  no  ex- 
cuse for  refusing  or  neglecting  to  furnish  information  as  a  basis 
either  for  electoral  action  or  for  needed  co-operation  with 
ofi&cials  who  are  striving  to  do  their  duty.  For  the  election  of 
men  to  oflSce  who  are  incompetent,  or  still  worse  for  the  re- 
election of  men  who  have  proved  unfaithful  to  public  trusts,  the 
indolent  citizen  has  himself  to  blame.  It  is  not  necessary  that 
he  spend  all  his  time  building  up  an  organization  which  can 
control  more  votes  than  the  so  called  "boss."  If  he  directs 
efforts  toward  obtaining  for  himself  and  his  fellows  information 
intended  to  make  the  community  intelligent,  or  if  he  provides 
himself  and  his  associates  with  evidence  of  the  competence 
or  incompetence,  of  the  fidelity  or  infidelity  of  public  ofl&cials, 
a  single  citizen  can  set  in  motion  all  the  powers  of  government 
for  the  protection  of  the  public  welfare. 

86.  Direct  Participation  in  Legislation 

Direct  participation  of  citizens  in  legislation  is  not  to  be 
confused  with  similar  acts  of  the  electorate,  as  discussed  in  the 
pages  following  imder  such  heads  as  initiative,  referendvun, 
etc.    The  citizen  as  citizen,  be  he  man  or  woman,  minor  or  • 

1  A7n.  and  Eng.  Encyc.  of  Law  (1901),  vol.  xvii,  p.  1280;  State  v.  Frizell, 
III  N.  Car.  722. 

^  Am.  and  Eng.  Encyc.  of  Law  (1901),  vol.  xvii,  p.  1287;  State  v.  Parrish, 
8  Humph.  (Tenn.)  80. 


§85]  Legislation  121 

major,  may  take  a  very  direct  and  potent  part  in  legislation. 
An  illustration  of  what  is  meant  is  found  in  the  direct  co- 
operation between  citizens  and  governing  agents  in  Wisconsin  ^ 
in  the  making  of  laws  or  executive  ordinances  regulating 
factories. 

In  191 1  the  legislature  of  that  state,  in  creating  an  industrial 
commission,  brought  together  in  one  organization  all  the  laws 
dealing  with  employers  and  employees.  Under  a  single  admin- 
istrative agency  is  placed  the  collection  of  accident  statistics, 
the  supervision  of  newsboys,  supervision  under  the  compul- 
sory education  law,  the  limitation  of  the  hours  of  women  in 
industry,  supervision  of  apprenticeship,  employment  agencies, 
safety  and  sanitation,  workmen's  compensation  for  injury, 
factory  inspection,  etc. 

The  duties  of  the  Industrial  Commission  are  similar  to  those 
of  the  Railroad  Commission  in  that  the  members  are  required 
to  hold  pubHc  hearings  and  establish  standards  of  safety  and 
sanitation  for  the  welfare  of  employees.  The  pecuHar  fact 
about  the  commission  is  the  extent  to  which  it  has  availed 
itself  of  the  co-operation  of  citizens  (acting  in  the  capacity  of 
advisory  committees  without  compensation),  in  drawing  up 
the  rules  or  executive  ordinances  to  control  these  various  activ- 
ities. The  following  lists  will  show  the  character  of  persons 
who  have  been  induced  to  assist  in  the  preparation  of  laws  by 
which  they  themselves  are  to  be  governed. 

Committee  on  Safety  and  Sanitation 

Representing  Wisconsin  State  Federation  of  Labor:  Joseph 
Gressler,  machinist,  Milwaukee;  George  Krogstad,  pattern- 
maker, Milwaukee. 

Representing  Milwaukee  Merchants  and  Manufacturers^  Asso- 
ciation: Charles  P.  Bossert,  Pfister  &  Vogel  Leather  Co.; 
Edward  J.  Kearney,  Kearney  &  Trecker  Co.  (machinery). 
Chairman  of  Committee. 

1  Biennial  Report  of  the  Industrial  Commission  and  its  Predecessors, 
1883-1912. 


122     Direct  Participation  in  Government     [§85 

Representing  Milwaukee  Health  Department:  Joseph  Derfus, 
Chief  Sanitary  Inspector. 

Representing  Wisconsin  Manufacturers^  Association:  Thomas 
McNeill,  Sheboygan  Chair  Company,  Sheboygan;  H.  W. 
Bolens,  Gilson  Manufacturing  Co.  (engines).  Port  Washington. 

Representing  Employers'  Mutual  Liability  Company  of  Wau- 
sau :  W.  C.  Landon,  Wausau,  Wis. 

Representing  Industrial  Commission  of  Wisconsin:  John  W. 
Mapel,  Pfister  &  Vogel  Leather  Co.;  Fred  W.  McKee,  Fair- 
banks-Morse Co.  (engines),  Beloit;  Ira  L.  Lockney,  Deputy 
to  the  Industrial  Commission  of  Wisconsin;  C,  W.  Price 
Assistant  to  the  Industrial  Commission  and  Secretary  of  the 

Committee.  ^  t?  ^„^ 

Committee  on  Elevators 

C.  F.  Ringer,  Inspector  of  Buildings,  City  of  Milwaukee; 
Otto  Fischer,  Inspector  of  Elevators,  City  of  Milwaukee;  P. 
Jermain,  Otis  Elevator  Co.;  F.  A.  Barker,  Inspector  of  Safety, 
.Etna  Life  Insurance  Co.;  G.  N.  Chapman,  Inspector  of  Safety, 
Travelers'  Insurance  Co.;  J.  Humphrey,  Deputy  to  In- 
dustrial  Commission;    C.  W.  Price,  Assistant   to   Industrial 

Commission.  „  ^  ^  -d^.^^-^c^ 

Committee  on  Boilers 

Theodore  Vilter,  Superintendent  of  Vilter  Manufacturing 
Co.;  W.  D.  Johnson,  Secretary  of  Milwaukee  Boiler  Co.; 
H.  F.  Bowie;  J.  Humphrey,  Deputy  to  the  Industrial  Com- 
mission; R.  Kunz,  Chief  Examiner  and  Inspector,  State 
Engineering  Board  of  Examiners. 

Sub-committee  on  Sanitation 
Fred  Stern,  Atlas  Bakery,  Milwaukee;   Fred  Swartz,  Pfister 
&  Vogel  Leather  Co.,  Milwaukee;  H.  W.  Page,  Sturtevant  Co.; 
A.  W.  Huttan,  Metal  PoUshers'  Union,  Milwaukee;  C.  B.  Ball, 
Chief  Sanitary  Inspector,  Board  of  Health,  Chicago. 

Committee  on  Bakeries 
Frank  Schiffer,  Association  of  Master  Bakers,  Milwaukee; 
August  Schmitt,  Association  of  Master  Bakers,  Milwaukee; 


§85]  Legislation  123 

M.  H.  Carpenter,  Wisconsin  Association  of  Master  Bakers; 
R,  Colvin,  Wisconsin  Wholesale  Bakers'  Association,  Janes- 
ville;  C.  B,  Ball,  Chief  Sanitary  Inspector,  Board  of  Health, 
Chicago. 

When  this  work  was  organized  it  was  under  very  grave  sus- 
picion by  those  who  were  to  be  governed  by  the  very  broad 
powers  granted  to  the  commission.  It  was  only  after  much 
persuasion  that  owners  of  factories  were  induced  to  sit  down 
with  representatives  of  workingmen  and  representatives  of  the 
state  to  formulate  rules  which  would  be  by  them  considered 
reasonable  and  just.  After  they  had  got  into  the  work,  how- 
ever, after  each  had  come  to  see  the  problem  as  one  of  common 
welfare,  weeks  and  long  hours  were  spent  by  members  of  these 
voluntary  committees  in  the  drafting  of  the  rules  which  the 
commission  was  to  promulgate  and  execute. 

This  sort  of  co-operation  is  the  most  recent  development  in 
the  adaptation  of  democratic  government  to  the  welfare  needs 
of  the  people.  The  laws  which  are  enacted  by  the  government 
come  to  those  who  are  to  promulgate  them  (in  this  case  the 
commission)  after  the  most  careful  consideration  of  all  parties 
interested.  This  is  the  most  effective  form  of  direct  legis- 
lation —  it  does  not  even  require  the  interposition  of  an 
electorate  between  the  citizen  and  the  ofhcer. 

This  is  a  much  more  effective  form  of  citizen  co-operation 
than  is  usually  sought  and  obtained.  Mayors  of  cities  fre- 
quently appoint  advisory  commissions,  with  the  request  that 
such  subjects  as  finance,  taxation,  borrowing,  charter  revision 
be  gone  into  and  that  reports  be  submitted  recommending  what 
changes  in  law  are  thought  to  be  desirable.  But  these  are  all 
subjects  of  such  broad  bearing,  and  the  persons  who  undertake 
to  serve,  although  they  may  have  attained  great  prominence, 
are  so  much  handicapped  for  lack  of  information,  that  rela- 
tively small  benefits  accrue  to  the  community.  The  Wiscon- 
sin plan,  however,  reduces  the  subject  of  legislation  to  such  high 
specialization  that  those  who  are  asked  to  co-operate  may 


1 24     Direct  Participation  in  Government    [§  86 

render  the  highest  expert  services.  Every  committee  combines 
in  its  membership  the  best  experience  obtainable  and  repre- 
sents all  the  interests  which  should  be  considered  in  reaching 
a  conclusion  that  mil  lay  the  foundation  for  the  promulgation 
of  laws  that  fit.  Another  interesting  fact  to  be  considered  is 
this:  that  there  is  not  a  subject  of  legislation  —  municipal, 
state,  or  national  —  that  does  not  lend  itself  to  similar  consid- 
eration. It  is  a  characteristic  of  co-operation  that  is  limitless 
in  its  possibilities. 

86.  The  Citizen's  Participation  in  the  Arrest  of  Offenders 

The  duty  of  the  citizen  to  assist  the  bfl&cer  in  preserving  the 
peace  and  in  making  arrests  was  inherited  from  a  monarchical 
regime.  In  the  case  of  criminal  acts  each  citizen  is  charged 
with  practically  the  same  powers  and  duties  as  an  officer. 
Under  the  common  law  any  person  who  is  present  when  a  fel- 
ony is  committed  is  bound  by  law  to  arrest  the  felon  on  pain  of 
fine  and  imprisonment  if  the  felon  escapes  through  neghgence. 
Private  persons  are  justified  in  breaking  open  doors  in  following 
the  felon,  and  may  take  his  Ufe  if  he  cannot  be  captured  any 
other  way.  In  case  anyone  is  killed  by  the  felon  in  making 
the  arrest,  the  felon  is  guilty  of  murder.  Private  persons  may 
even  arrest  a  person  upon  suspicion  of  having  committed  a 
felony,  but  they  may  not  forcibly  enter  a  house  for  the  arrest 
of  a  suspected  felon.  ^ 

In  many  states  the  right  of  arrest  by  private  persons  is  defined 
by  law.  In  New  York  state  a  private  person  may  arrest:  (i) 
a  person  for  a  crime  committed  in  his  presence,  (2)  a  person 
who  has  committed  a  felony,  although  not  in  his  presence, 
and  (3)  a  person  who  attempts  to  conceal  his  identity  by  vari- 
ous means  and  who  appears  thus  concealed  in  a  road  or  public 
highway,  field,  lot,  wood,  or  enclosure.^ 

Some  authorities  lay  down  the  rule  that  a  private  person 

^  IV  Blackstone,  ch.  xxi. 

2  Parker,  N.  Y.  Code  of  Criminal  Procedure  (1909),  sec.  183;  sec.  187, 
subd.  7;  sec.  895. 


§87]  Citizen  Co-operation  125 

arrests  a  person  for  felony  "at  his  peril";  whereas  an  oflEicer 
may  arrest  a  person  without  a  warrant  in  case  he  has  reasonable 
ground  to  suspect  him  of  the  commission  of  a  felony.  A  pri- 
vate citizen  who  makes  a  seizure  is  guilty  of  false  arrest  unless 
he  can  prove  that  a  felony  has  actually  been  committed  and 
that  the  person  arrested  is  the  guilty  party. ^  Likewise  the 
duty  to  assist  has  been  defined  by  law  in  most  states.  In  New 
York  state  a  sheriff  has  the  right  to  command  a  private  person 
to  assist  him  in  the  arrest  of  a  criminal.  Any  person  who  wilfully 
neglects  or  refuses  to  aid  an  ofl&cer,  or  to  arrest  unassisted  after 
being  commanded  to  do  so,  is  guilty  of   a  misdemeanor.^ 

87.   More  Recent  Development  of  Citizen  Co-operation  in 
Administration 

The  form  of  citizen  co-operation  in  administration  just 
described  was  not  the  outgrowth  of  popular  demand.  It  was 
developed  imder  a  monarchical  regime.  The  impressment  of 
the  individual  subject  into  service  for  purposes  of  assisting 
the  oflficer  in  making  arrests  and  in  the  preservation  of  the 
peace  was  akin  to  impressment  for  military  duty.  Like  the 
latter,  however,  this  legal  requirement  has  been  made  a  part 
of  modern  constitutional  government  as  a  proper  duty  or 
fimction  of  citizenship. 

The  forms  of  citizen  co-operation  in  administration  which 
have  developed  under  our  government,  generally  speaking, 
have  grown  up  as  a  w^orking  relation  between  the  citizen  as 
the  sovereign  and  the  oflQcer  as  the  servant.  This  working 
relation  has  been  made  operative  through  the  exercise  of  the 
rights  reserved  by  citizens  as  against  the  government,  such  as 
the  right  of  free  speech,  the  right  of  free  press,  the  right  of 
petition  and  remonstrance,  the  right  of  access  to  records,  the 

'  Cooley,  T.  M.,ror/j  (Student'sed.,  i907),pp.  163,  164,250-252.  Cooley 
cites  the  following  cases:  Palmer  v.  Maine  Central  R.  R.  Co.,  92  Maine  399; 
42  Atl.  800;  69  Am.  St.  Rep.  513.  L.  R.  A.  XLIV,  673;  Enright  v. 
Gibson,  219  111.  550;  Pandgiris  v.  Uartman,  196  Mo.  539;  Beckmth  v. 
Phibly,  6  Bam.  and  Gres.  635. 

*  Parker,  A.  J.,  N.  Y.  Code  of  Criminal  Procedure  (1909),  sees.  102,  104; 
N.  Y.  Laws,  1882,  ch.  384. 


1 26     Direct  Participation  in  Government     [§  87 

right  of  assembly,  and  the  right  to  instruct  their  representa- 
tives. WTiile  these  constitutional  rights  have  laid  upon  citizen- 
ship corresponding  duties  and  responsibihties,  there  is  no  legal 
requirement  to  do  a  particular  thing. 

By  some  the  recall  is  regarded  as  an  administrative  device 
to  be  used  by  citizens.  While  it  is  said  to  have  grown  out  of 
the  right  of  petition,  and  is  one  of  the  means  provided  for  ending 
an  official  term  by  "due  process  of  law,"  it  is,  in  fact,  a  func- 
tion of  the  electorate  and  not  one  of  citizenship  as  such.  In 
so  far  as  it  is  administrative  at  all  it  takes  on  the  character- 
istics of  the  administration  of  justice  and  serves  the  same 
purpose  as  an  action  of  ouster.  In  operation  it  means  the 
estabUshment  of  a  cause  for  removal,  due  notice,  and  a  hearing 
upon  charges.^ 

In  recent  years  a  form  of  citizen  participation  in  adminis- 
tration has  grown  up,  in  part  due  to  the  fact  that  citizens  have 
taken  a  more  direct  and  inteUigent  interest  in  what  is  being 
done,  in  part  due  to  the  fact  that  officers  finding  themselves 
handicapped  have  requested  the  assistance  of  citizens  in  bringing 
about  conditions  that  will  enable  them  to  increase  the  econ- 
omy and  efficiency  with  which  the  ever>^day  affairs  of  the  gov- 
ernment are  carried  on.  The  requests  by  officers  for  citizen 
help  have  been  made  to  agencies  organized  for  independent 
citizen  inquiry  —  agencies  that  are  supported  by  persons  not 
actively  partisan  in  these  associations  and  who  as  citizens  not 
only  feel  keenly  the  duties  of  citizenship  but  who  recognize 
that  officers  are  handicapped  in  a  way  that  would  make  them 
impotent  if  similarly  situated  in  the  administration  of  their 
owTi  affairs.  The  thought  of  those  who  organized  these  agencies 
has  been  that  the  administration  of  pubUc  business  is  a  highly 
complex  and  technical  problem.  Wishing  as  citizens  to  obtain 
exact  information,  about  what  is  going  on,  to  know  something 
of  the  problem  of  each  office,  of- the  organization  and  equip- 
ment provided  for  doing  work,  of  the  character  of  results 

1  Gilbertson,  The  Recall,  its  Provisions  and  Significance.  (Am.  Acad,  of 
Pol.  Sci.,  Annals,  September,  191 2.) 


§87]  Citizen  Co-operation  127 

obtained,  etc., it  has  been  conceived  that  the  way  to  do  this  is 
to  provide  a  citizen  organization  which  is  equipped  with  a 
technical  stafif  and  which  employs  a  method  of  research  adapted 
to  the  purpose. 

The  first  agency  of  this  kind  established  in  this  country  was 
the  Bureau  of  Municipal  Research  of  New  York.  Prior  to  this 
time  there  had  been  many  citizen  agencies  which  were  inter- 
ested in  matters  of  pohtics  and  legislation  and  in  the  results 
of  administration,  but  this  was  the  first  to  make  it  its  business 
to  get  into  the  technical  details  of  pubHc  business  and  to  con- 
sider questions  of  administration  from  the  viewpoint  of  the 
conditions  with  which  the  ofl&cer  himself  must  contend.  The 
new  thought  in  the  organization  of  this  citizen  agency  was 
that  official  incompetence  and  the  waste  of  public  resources 
are  largely  due  to  these  conditions  over  which  the  officer  or 
employee  has  little  or  no  control;  that  the  public  officer 
comes  to  his  position  of  responsibility  under  a  serious  handicap 
in  that  the  pressure  of  pubHc  business  which  he  finds  upon  him 
from  the  first  day  he  enters  his  office  is  so  great  that  he  is 
soon  entangled  in  the  meshes  of  an  existing  system  from 
which  he  cannot  escape  without  help  from  the  outside ;  that 
the  only  force  adequate  to  remedy  these  defects  is  intelligent 
citizenship.  Further  than  this  it  was  recognized  that  citizen- 
ship without  adequate  means  for  obtaining  information  about 
what  is  going  on  cannot  be  of  material  assistance  to  the  officer. 
Citizenship  without  accurate  knowledge  cannot  intelHgently 
exercise  the  powers  of  sovereignty,  but  instead  is  made  the 
tool  of  designing  persons  who  make  it  their  business  to  be 
informed  in  order  that  they  may  use  ill-directed  public  opinion 
for  their  own  profit. 

This  agency  of  citizen  research  and  publicity  was  established 
in  1905,  and  since  that  time  it  has  been  in  constant  co-opera- 
tion with  officers  in  correcting  the  methods  and  processes  which 
are  adverse  to  efficient  public  service.  Similar  results  have 
followed  in  Philadelphia.  For  three  years  a  number  of 
public-spirited  citizens  of  that  city  have  maintained  an  agency 


128     Direct  Participation  in  Government    [§87     . 

of  technical  inquiry  and  report,  the  data  obtained  being  first 
made  available  to  officers  who  have  the  power  to  correct.  While 
at  first  officers  resented  the  inquiries  of  this  agency  as  an 
impertinent  intrusion,  and  prevented  access  to  records,  the 
Philadelphia  Bureau  —  without  attempting  to  enforce  its  rights 
through  mandamus,  by  simply  keeping  persistently  at  work  m 
collecting  facts  about  the  manner  of  doing  business  —  within 
a  few  months  after  its  organization  developed  information  of 
a  character  which  convinced  officers  of  the  desirability  of  in- 
viting co-operation. 

Cincinnati  citizens  also  have  provided  themselves  with  a 
research  agency  with  like  result.  Chicago  followed  with  a  Hke 
organization.  A  new  administration  in  Milwaukee  organized 
an  official  Bureau  of  Municipal  Research;  but  a  single  change 
in  pontics  made  it  inoperative.  The  citizens  are  now 
organizing  a  new  official  agency  to  keep  in  touch  '^ith  their 
government.  As  indicating  the  need  for  inteUigent  citizen 
co-operation  and  support  to  administrative  officers,  it  is  also 
of  interest  to  note  that  a  number  of  other  cities  where  no 
such  agencies  exist  are  requestmg  the  bureaus  in  New  York, 
Philadelphia,  or  elsewhere  to  assist  them;  and  officers  who  are 
interested  in  doing  constructive  work  are  importuning  the 
citizens  of  their  locaUties  to  provide  themselves  with  the 
local  means  whereby  they  may  know  about  the  many  technical 
details  of  the  business  with  which  these  officers  are  charged. 
They  have  besought  the  pubUc-spirited  men  and  women  of 
these  mimicipalities  to  keep  in  touch  with  their  efiforts  and  to 
provide  the  means  for  knowing  what  are  the  defects  in  organ- 
ization, the  lack  of  proper  equipment;  this  is  done  by  officers 
who  are  trying  to  render  efficient  service  in  order  that  they 
may  be  protected  against  what  is  commonly  called  the  back- 
ward swing  of  the  pendulum  —  i.e.,  against  the  adverse  action 
of  an  electorate  which  responds  to  pubHc  opinion  created  by 
those  who  would  avail  themselves  of  an  election  to  put  in  office 
officials  who  may  be  controlled  for  partisan  or  selfish  ends. 

More  concretely,  the  result  of  this  sort  of  citizen  activity 


§87]  Citizen  Co-operation  129 

has  been  that  an  independent  welfare  agency  has  become 
possessed  of  such  a  fund  of  information  about  public  affairs 
that  when  officers  have  come  to  assume  responsibility  they 
have  had  the  means  at  hand  for  taking  hold  of  the  problems  of 
office  effectively  from  the  start;  they  have  had  the  means 
for  becoming  promptly  informed  about  each  condition  that 
must  be  corrected,  for  knowing  each  obstacle  that  must  be 
overcome.  Or  in  case  the  officer  himself  may  be  indifferent 
to  these  conditions,  he  has  had  his  attention  called  to  defects 
to  be  remedied  and  results  to  be  avoided,  thus  placing 
him  in  a  position  where  responsibility  for  full  knowledge  could 
not  be  avoided.  Through  intelligent  citizen  interest  and  co- 
operation each  officer  has  been  able  to  map  out  a  constructive 
programme  at  the  beginning  of  his  official  term,  %\ith  the  assur- 
ance that  he  will  not  be  misrepresented.  Instead  of  being  left 
to  wrestle  with  responsibilities  under  conditions  that  make 
efficient  performance  impossible,  instead  of  being  without  pro- 
tection except  such  as  is  to  be  obtained  from  a  "political  boss," 
the  officer  has  been  made  aware  that  there  is  an  organization 
which  has  no  partisan  favors  to  ask,  which  cannot  be  disci- 
plined by  "the  party  boss,"  which  is  interested  only  in  the 
management  of  the  office  as  a  public  trust.  In  each  case  these 
agencies  have  not  only  been  able  to  assist,  but  have  been  a 
factor  in  getting  the  power  of  public  opinion  behind  the  man  who 
wishes  to  do  the  right  thing,  in  providing  the  means  for  placing 
this  same  power  in  front  of  the  man  who  seeks  to  do  the  wrong 
thing.  Thus  citizenship  through  agencies  of  research  has  become 
an  active  and  potent  factor  in  administration  as  well  as  in 
legislation  —  in  making  the  executive  branch  of  the  public 
service  effective  where  before  it  had  been  employed  only  as  a 
convenient  tool  of  the  spoilsman. 


Part   III 

The  Electorate  as  an  Agency  for  Expressing 
Public  Opinion 


CHAPTER  X 
EVOLUTION    OF    QUALIFICATIONS    FOR    THE    SUFFRAGE 

88.  References 

Bibliography:  A.  B.  Hart,  Manual  (1908),  §§  103,  104,  154,  204,  242, 
288;  E.  McClain,  Constitutional  Law  (rev.  ed.,  1910),  §  197;  A.  B.  Hart, 
Actual  Government  (rev.  ed.,  1908),  §32;  R.  C.  Ringvvalt,  Briefs  on  Public 
Questions  (1905),  No.  224;  J.  W.  Garner,  Introduction  to  Political  Science 
(1910),  489. 

Constitutional  Aspect:  H.  C.  Black,  Constitutional  Law  (2d  ed., 
1897),  §§  232-234;  T.  M.  Cooley,  Constitutional  Law  (1898),  ch.  xiv,  §  2; 
T.  M.  Cooley,  Constitutional  Limitations  (7th  ed.,  1903),  ch.  xvii;  J.  N. 
Pomeroy,  Constitutional  Law  (loth  ed.,  1888),  §§  206-215;  J.  Story,  Com- 
mentaries on  the  Constitution  (5th  ed.,  1891),  §§  577-586;  E.  McClain, 
Constitutional  Law  (rev.  ed.,  1910),  §§  197-200. 

Colonial  Suffrage:  C.  F.  Bishop,  History  of  Elections  in  American 
Colonies  (1893),  part  i,  ch.  ii;  R.  H.  Burch,  Conditions  Affecting  the  Suffrage 
in  the  Colonies  (1905);  G.  H.  Hajoies,  History  of  Representation  and  Suffrage 
in  Massachusetts,  1620-1691  (Johns  Hopkins  University,  Studies,  XII, 
No.  8);  A.  B.  Hart,  Practical  Essays  (1893),  No.  2;  A.  E.  McKinley,  The 
Suffrage  Franchise  in  the  Thirteen  English  Colonies  (1905). 

State  Suffrage:  R.  L.  Ashley,  American  Federal  State  (1902),  ch.  xxii; 
F.  A.  Cleveland,  Growth  of  Democracy  (1898),  ch.  vi;  B.  A.  Hinsdale,  Amer- 
ican Government  (1895),  ch.  liv;  J.  A.  Frieze,  A  Concise  History  of  the  Efforts 
to  obtain  Extension  of  Suffrage  in  Rhode  Island  (1S42);  J.  Bryce,  American 
Commonwealth  (rev.  ed.,  1910),  I,  ch.  li,  lii;  A.  B.  Hart,  Actual  Government 
(rev.  ed.,  1908),  ch.  iv;  J.  Macy,  Parly  Organization  and  Machinery  (1904), 
ch.  i;  G.  D.  Luetscher,  Early  Political  Machinery  in  the  United  States  (1903), 
ch.  i;  J.  B.  McMaster,  A  History  of  the  People  of  the  United  States  (1900), 
V,  ch.  1;  F.  N.  Thorpe,  A  Constitutional  History  of  the  American  People 
(1898),  chs.  vii,  xiv;  A.  de  Tocqueville,  Democracy  in  America  (1835-1840), 
I,  chs.  iv  and  xiii;  J.  Schooler,  Constitutional  Studies  (1897),  pt.  ii,  ch.  iv; 
C.  E.  Merriam,  American  Political  Theories  (1903),  ch.  v. 


§§  89,  go]  Changes  in  Institutions  1 3 1 

V^  89.  Slow  Changes  in  Political  Institutions 

The  rights,  the  properties,  the  economic  interests,  the  habits 
of  the  people  are  all  involved  in  their  political  organization. 
The  principle  of  self-interest,  as  manifested  in  expressions  of 
the  will  of  the  majority,  has  impelled  society  into  established 
institutions.  Hence  changes  have  usually  taken  place  only 
as  the  interests  and  habits  of  the  people  have  been  modified, 
and  these  in  turn  have  followed  changes  in  the  popular  ideals. 
Progress  is  of  necessity  slow.  The  mental  inertia  of  a  nation, 
together  with  the  necessity  for  orderly  conduct  on  the 
part  of  its  members  in  their  social  and  industrial  relations, 
requires  that  institutional  changes  be  a  growth  rather  than  a 
creation.  New  popular  ideals  must  result  from  experience, 
and  even  after  experience  has  been  gained  they  must  await 
the  slow  process  of  education  and  institutional  adaptation. 

90.   Comparison  of  Monarchical  and  Popular  Traditions  in  the 
Colonies 

On  the  other  hand,  there  is  no  more  effective  way  of 
dramatizing  a  need  for  change  than  by  the  employment  of 
harsh  measures  of  restraint.  The  Revolutionary  War  was  the 
result  of  attempts  to  keep  up  an  obsolete  institutional  relation, 
by  means  of  restraint  under  conditions  which  made  it  evident 
that  the  old  system  was  a  misfit.  This  was  due  to  the  fact 
that  those  who  exercised  the  powers  of  government  in  England 
failed  to  recognize  the  new  social  and  economic  conditions; 
they  failed  to  appreciate  the  need  of  adaptation  to  expanding 
democratic  ideals;  they  failed  to  comprehend  that  the 
growth  of  democracy  is  sure  to  come  when  a  representative 
electorate  develops.  They  would  not  provide  an  agency 
through  which  the  sovereign  will  of  the  people  might  be 
impressed  on  the  official  class,  whether  the  government  were 
a  social  democracy  in  the  institutional  form  of  a  limited 
monarchy,  or  a  represeatative  republic,  or  what  is  known  as 
a  pure  democracy,    k^ 


132  Qualifications  for  Suffrage  [§91 

91.  Summary  of  Colonial  Qualifications  for  Voting 

The  constitutional  changes  so  far  as  they  affected  the 
electorate  were  almost  nil.  The  drama  of  war  had  served 
quite  a  different  constitutional  purpose  than  to  call  attention 
to  inequalities  of  this  kind.  In  the  early  part  of  our  colonial 
history  the  qualifications  prescribed  for  electors,  generally 
speaking,  were  those  of  residence  and  age,  and  that  of  "free- 
men." No  definite  period  of  residence  was  at  first  required, 
but  the  warrants  calling  for  the  election  usually  implied  or 
specified  residence  as  a  condition  precedent  to  the  right  of 
participation.  Later  a  definite  period  was  prescribed,  varying 
from  three  months  to  two  years;  for  instance,  in  Pennsylvania,^ 
Delaware,^  and  Virginia,  two  years;  in  North  Carolina,^  New 
Jersey,*  and  South  Carolina,^  one  year;  in  Georgia,  six 
months;  ^  in  New  York  City  and  Albany,  three  months. 

The  age  qualification  was  usually  twenty-one  years,  but  in 
several  colonies  other  qualifications  were  adopted  for  certain 
periods  of  time.  For  instance,  in  Rhode  Island  (1665)  house- 
holders eighteen  years  of  age  were  allowed  to  take  the  oath  of 
freemen;  in  New  Hampshire  twenty-four  years  was  prescribed, 
while  Delaware  retained  the  age  qualification  of  twenty-two 
years  in  her  constitutions  of  1797  and  1831. 

The  "freeman"  was  originally  a  member  of  the  company, 
i.e.,  a  stockholder.  Later,  however,  the  meaning  of  this  term 
changed.  In  the  New  England  colonies,  it  came  to  mean  those 
who  had  been  accorded  the  freedom  of  the  colony.  "To  obtain 
this  freedom,  and  thus  become  a  freeman,  and  incidentally  an 
elector,  certain  prescribed  steps  had  to  be  taken.  .  .  .  Free- 
men could  originally  be  admitted  at  one  of  the  general  courts. 
.  .  .  Ultimately  freemen  were  allowed  to  be  admitted  in 
their  owti  towns."  ^    In  some  of  the  cities  like  New  York 

1  Poore,  B.  P.,  Charters  and  Constitutions,  p.  1696. 

2  7  Geo.  II,  6ia  (Franklin  and  Hall  cd.),'  1752,  p.  188. 

3  Laws  of  1 715,  ch.  10.  ^  Act  of  1721,  3  Cooper,  2. 
*  Neville's  Laws,  p.  142.                                  ^  Act  of  June  9,  1761. 

">  Bishop,  C.  F.,  History  of  Elections,  pp.  47,  49. 


§92]  Church  Membership  133 

and  Albany  the  term  signified  those  who  had  the  freedom 
of  the  corporation.  Virginia  allowed  the  "inhabitants"  to 
vote  for  the  burgesses  in  162 1  and  later  in  1670  it  was  provided 
that  the  burgesses  should  be  elected  "by  the  votes  of  all  per- 
sons who  have  served  their  time  as  freemen  of  this  country."^ 
Sex  was  also  understood  as  a  quahfication  in  common  law. 
In  fact,  the  idea  that  any  other  than  males  could  vote  seems 
scarcely  to  have  been  suggested,  although  in  Virginia  we  find 
an  act  providing  that  "no  woman,  sole  or  covert,"  shall  have 
a  voice  in  the  choice  of  the  burgesses,  and  in  North  Carolina 
the  word  "man"  appears  in  the  statutes.  Bishop  is  of  the 
opinion  that  the  qualification  of  "freeman"  in  the  New  Eng- 
land colonies  would  necessarily  debar  women.  This,  however, 
would  not  be  true  in  case  any  women  were  stockholders. 

92.  Colonial  Qualifications  of  Church  Membership  for  Voting 

Clearly  the  religious  qualifications  imposed  on  the  early  col- 
onists are  attributable  to  the  political  ideals  of  the  country 
from  which  they  came.  Just  as  James  I  declared  "no  bishop, 
no  king";  so  the  Puritans  of  Massachusetts  Bay,  Plymouth, 
and  New  Haven  held  that  their  political  ideals  were  unsafe 
unless  the  suffrage  was  Umited  to  members  of  the  Puritan 
churches.  In  fact  Massachusetts  Bay  went  further  —  it  held 
that  other  religious  beliefs,  as  of  Baptists,  Antinomians,  and 
Quakers,  threatened  the  sohdarity  of  its  life.  Accordingly 
Massachusetts  Bay  provided  in  1631  that  it  was  necessary  to 
belong  to  the  Puritan  church  ,2  or  to  be  a  member  of  some 
church  of  Christ  in  full  communion.^ 

Plymouth  provided  that  the  candidate  for  suffrage  should 
be  "orthodox  in  the  fundamentals."*  But  even  these  milder 
terms  did  not  satisfy  England,  and  with  the  union  of  Massa- 
chusetts and  Pl3niiouth  in  1691  all  reUgious  tests  were  dropped.^ 

•  Bishop,  C.  F.,  History  of  Elections,  p.  49. 

2  Book  of  General  Laws  of  1631,  (ed.  1672),  p.  56. 

*  Book  of  General  Laws  (ed.  1660),  p.  33;  Mass.  Col.  Rec,  pt.  ii,  pp.  117, 
166,  167.  ^  Book  of  Laws,  1671,  ch.  5,  sec.  5. 

^  Poore,  B.  P.,  Charters  and  Constitutions,  etc.,  vol.  i,  p.  942. 


134  Qualifications  for  Suffrage  [§93 

The  New  Haven  colony,  soon  after  its  establishment,  pre- 
scribed "church  membership"  as  a  qualification  for  suffrage.^ 
At  the  time  of  the  coalition  of  the  colony  with  the  Connecti- 
cut colony  and  the  adoption  of  the  constitution  (1664)  these 
qualifications  disappeared.^ 

Naturally  these  qualifications  remained  undisturbed  during 
the  Puritan  regime  in  England.  But  no  sooner  had  the  Stu- 
arts been  restored  and  the  Clarendon  Code  established  member- 
ship of  the  Church  of  England  as  a  basis  for  suffrage  in  the 
mother  country  than  the  two  established  churches,  the  one 
in  England  and  the  other  in  New  England,  came  into  conflict. 
Non-Puritan  residents  in  New  England  complained  to  the 
King  against  the  Puritan  restrictions.  Massachusetts  Bay  was 
ordered  to  aboHsh  the  religious  qualifications.  Massachusetts, 
therefore,  changed  her  qualifications,  in  1662,  to  admit  persons 
to  suffrage  who  could  furnish  the  certificate  of  a  minister 
that  the  applicant  was  "orthodox  in  religion  and  not  vicious." 

93.   Colonial  Exclusion  of  Sectarians  from  Voting 

Rhode  Island  at  first  excluded  no  one  from  the  suffrage 
because  of  "differing  judgments  in  religious  affairs."  By 
1 719,  however,  this  tolerant  spirit  was  modified  as  follows: 
"All  men  professing  Christianity  though'of  different  judgments 
in  religious  affairs  (Roman  Catholics  excepted)."  This  clause 
reappears  "in  the  editions  and  digests  published  in  1730, 
1745,  and  1767.  As  the  law  was  not  repealed  until  1783, 
there  can  be  no  doubt  that  persons  professing  this  religion 
could  not  vote  during  the  greater  part  of  the  Eighteenth 
Century."  ^ 

Locke's  inoperative  constitution  of  South  Carolina  pre- 
scribed the  acknowledgment  and  public  worship  of  God.* 
Owing  to  the  political  relations  in  Europe  and  to  the  rehgious 

1  New  Haven,  Col.  Rec.  (1639),  vbl.  i,  p.  15. 

*  Poore,  B.  P.,  Charters  and  Constitutions,  vol.  i,  p.  252. 
5  Bishop,  C.  F.,  History  of  Elections,  p.  63. 

*  Poore,  B.  P.,  Charters  and  Constitutions,  p.  1407. 


§93]  Exclusion  of  Sectarians  135 

prejudices  against  the  Catholics  growing  out  of  these  relations, 
the  CathoUcs  were  quite  generally  barred  from  the  right  of 
suffrage  among  the  colonies.  Bishop  states:  "It  seems  to  have 
been  the  rule  in  most  of  the  American  colonies  that  Roman  Cath- 
ohcs  could  not  vote.  They  were  especially  disfranchised  by 
the  statutes  of  New  York  and  Maryland.  In  these  two  gov- 
ernments persons  suspected  of  popish  beliefs  were  required, 
before  being  permitted  to  vote,  to  take  the  oaths  of  suprem- 
acy and  allegiance,  and  to  sign  the  test  and  association.  Pop- 
ish recusants  were  disfranchised  in  New  York  and  Virginia. 
An  early  law  of  New  Hampshire  which  was  repealed  imme- 
diately after  it  was  enacted,  required  freemen  to  be  protes- 
tants.  .  .  .  The  provisions  in  regard  to  church  membership 
in  Massachusetts  during  the  government  under  the  charter 
of  1628  would  doubtless  have  excluded  Roman  Catholics.  On 
the  other  hand  the  religion  of  the  Baltimores  and  the  general 
character  of  their  government  would  seem  to  justify  the  belief 
that  before  the  royal  regime  commenced,  in  1689,  papists 
could  vote  in  Maryland."  ^ 

Quakers  having  scruples  against  taking  an  oath  in  the  name 
of  God,  by  reasons  of  the  oaths  required  as  conditions  prece- 
dent, were  practically  deprived  of  the  privileges  of  representa- 
tion or  participation  in  the  government.  In  some  of  the 
colonies  Jews  also  were  deprived  of  the  ballot.^ 

AH  of  these  religious  qualiiications  were  so  foreign  to  the  con- 
ditions of  the  new  world  and  so  adverse  to  all  principles  of  jus- 
tice that  they  generally  disappeared,  and  the  new  regime  estab- 
lished during  and  subsequent  to  the  Revolutionary  War  in 
this  regard  found  Httle  to  modify.  In  the  constitution  of  South 
Carolina,  1778,  XIII,  we  find,  "The  qualifications  for  electors 
shall  be  that  every  free  white  man  and  no  other  person,  who 
acknowledges  the  being  of  a  God,  and  believes  in  a  future 
state  of  rewards  and  punishments  .  .  .  shall  be  capable  of  elect- 
ing a  representative  or  representatives,  ...  for  the  parish  or 

'  Bishop,  C.  F.,  History  of  Elections,  p.  62. 
*  Bishop,  C.  F.,  History  of  Elections,  p.  64. 


136  Qualifications  for  Suffrage  [§94 

district  where  he  actually  is  a  resident,  or  in  any  other  parish, 
or  district  in  this  state  where  he  hath  the  Hke  free-hold."  ^ 

94.   Moral  Qualifications  for  Colonial  Voting 

The  moral  qualifications  of  New  England,  such  as  persons 
"of  civill  conversation,  and  obediant  to  the  civill  majistrates,"  ^ 
"civill,  peaceable,  and  honest  conversation,"  ^  "sober  and 
peaceful  conversation,"  ^  one  who  is  not  an  "opposer  of  the  good 
and  wholesome  laws  of  the  colony,"  ^  came  largely  from  the 
prevailing  ideas  as  to  the  attitude  which  the  subject  under 
monarchical  rule  had  been  taught  to  assume  toward  his  Sove- 
reign. Those  of  the  South,  where  the  township  did  not  pre- 
vail, came  largely  from  the  social  and  legal  status  imposed  by 
the  mother  country.  For  example,  in  Virginia  convicts  or 
persons  convicted  in  Great  Britain  or  Ireland  and  trans- 
ported could  not  be  enfranchised  during  their  term  of 
transportation. 

So  many  were  the  convicts  sent  over  to  these  shores  by  Eng- 
land that  in  1769  Dr.  Johnson,  commenting  on  the  Americans 
and  their  demands,  refers  to  them  as  "a  race  of  con\dcts"  that 
"ought  to  be  content  with  anything  short  of  hanging."  ^  A 
very  large  number  of  persons  taken  prisoners  in  battle  or  con- 
victed of  political  offences  were  transported.  In  the  year  1651 
there  were  sixteen  hundred  and  ten  prisoners  taken  in  the  battle 
of  Worcester  sent  to  Virginia.  Many  of  the  Dutch  colonists 
taken  prisoners  in  New  York  and  Long  Island  by  the  English 
were  sold  in  the  South  as  slaves.  Some  of  this  "inferior  class" 
were  moral  or  religious  outcasts  and  many  were  criminals.  It 
has  been  estimated  that  no  less  than  fifty  thousand  people 
under  ban  of  law  were  transplanted  prior  to  the  Revolutionary 

^  Poore,  B.  P.,  Charters  and  Constitutions,  vol.  ii,  p.  1623. 

*  2  R.  I.  Col.  Rec,  113;  also  New  Hampshire  Laws,  1680. 
'  Conn.  Col.  Rec,  vol.  i,  389. 

*  Pl3Tnouth,  General  Laws,  1671,  ch.  v,  sec.  5. 
^  Plymouth  (1658),  Brigham,  p.  113. 

8  Butler,  J.  D.,  British  Shipped  to  the  American  Colonies  {Am.  Hist.  Rev., 
vol.  ii,  p.  12.) 


§95]  Property  Qualifications  137 

War,  most  of  whom  were  sent  in  the  seventeenth  century.* 
This  wholesale  practice  on  the  part  of  England  must  of  neces- 
sity have  affected  the  laws  in  the  colonies,  although  those 
enactments  which  were  the  direct  product  of  this  practice,  and 
which  were  not  subsequently  supplanted  or  made  necessary  by 
present  conditions,  were  repealed  when  the  practice  ceased. 

The  notion  that  these  harsh  and  exclusive  qualifications  for 
suffrage  came  largely  from  foreign  influence  is  not  a  theory, 
but  has  much  historic  data  to  support  it.  The  qualifications 
in  the  Crown  colonies  were  frequently  fixed  by  the  commissions 
to  the  governors;  ^  in  some  cases  they  were  prescribed  in  the 
charter;'  the  proprietary  governments  were  direct  attempts 
to  reproduce  the  feudal  system  and  to  limit  popular  partici- 
pation in  government.  Also,  about  1665,  a  royal  commission 
was  appointed  and  sent  over,  among  other  things,  to  investi- 
gate the  governments  of  New  England  and  to  endeavor  to  secure 
uniform  qualifications  for  electors. 

96.    Property  Qualifications  for  Colonial  Voting 

In  no  particular  do  we  find  institutional  influences  from 
abroad  more  potent  than  in  the  property  qualifications  for 
suffrage.  Some  of  the  colonies  imposed  property  qualifica- 
tions under  the  direct  guidance  and  recommendations  of  the 
commission  above  referred  to.'*  Others  had  them  fixed  by  char- 
ter. In  the  Massachusetts  charter  of  1691  we  find  the  follow- 
ing provisions:  "Noe  Freeholder  or  other  Person  shall  have  a 
Vote  in  the  Elecion  of  Members  to  serve  in  any  Create  and 
General  Court  or  Assembly  tp  be  held  as  aforesaid,  who,  at 
the  time  of  such  Elecion  shall  not  have  an  estate  of  Freehold 
in  Land  within  Our  said  Province  or  Territory,  to  the  value  of 
Forty  Shillings  per  Annum  at  the  least,  or  other  estate  to  the 
value  of  Forty  pounds  Stere." 

*  See  Am.  Hist.  Rev.,  vol.  ii,  pp.  12  et  scq.;  also  Ballagh,  White  Servitude 
in  the  colony  of  Virginia  (Johns  Hopkins  University,  Studies,  vol.  xiii). 

^  Bishop,  C.  F.,  History  of  Elections,  p.  46. 

*  Poore,  B.  P.,  Charters  and  Constitutions,  p.  949. 

*  Rhode  Island,  and  Connecticut,  for  example. 


138  Qualifications  for  Suffrage  [§95 

In  all,  the  whole  influence,  social  and  political,  coming  from 
the  other  side,  was  toward  property  qualifications,  while  the  spe- 
cial grants  of  territory  and  authority  and  the  feudal  institu- 
tions implanted  here  tended,  during  the  colonial  period,  to  build 
up  at  home  an  environment  that  would  demand  and  sustain 
such  a  rule  of  law. 

In  New  England,  as  in  Virginia,  there  was  no  property  qual- 
ification required  at  first,  and  Bishop  is  of  the  opinion  "  that 
with  the  possible  exception  of  Connecticut  its  introduction  was 
due  solely  to  the  interference  of  the  crown."  ^ 

Property  qualifications  were  more  exclusive  in  their  opera- 
tions than  any  of  the  others  imposed.  The  evolution  in  Vir- 
ginia was  as  follows: 2  From  1619,  the  date  of  the  first  election 
for  burgesses,  to  1655  all  of  the  "inhabitants"  could  vote.  In 
1655  a  law  was  passed  restricting  suffrage  to  "housekeepers," 
but  it  was  shortly  repealed  because  it  placed  too  great  a 
hardship  on  taxpayers  not  housekeepers.  In  1670  the  general 
voting  was  restricted  to  "freeholders  and  housekeepers  who 
were  answerable  to  the  pubhque  for  levies,"  and  this  lasted 
many  years,  except  during  the  temporary  government  of  the 
insurgents  during  Bacon's  Rebellion.  In  1736  the  real  prop- 
erty requirement  was  increased  to  one  hundred  acres  of  uncul- 
tivated land,  or  twenty-five  under  cultivation.  Later  this  was 
reduced  to  fifty  acres  of  uncultivated  or  twenty-five  cultivated. 

Connecticut  (1658)  imposed  a  qualification  of  "thirty  pounds 
proper  personal  estate."  In  1662  it  was  reduced  to  twenty 
pounds,  "besides  their  person,  in  the  list  of  estate,"  and,  in 
1675,  to  ten  pound  freehold  "  estate  in  land  besides  their  per- 
sonal estate."  In  1689  the  requirement  was  a  freehold  estate 
of  forty  shillings  in  county  taxes,  and  the  laws  finally  required 
a  "freehold  estate  to  the  value  of  forty  shillings  per  an.,  or 
forty  pounds  personal  estate."  ^ 

1  Bishop,  C.  F.,  History  of  Elections,  p.  72. 

*  Hening,  vol.  i,  pp.  112,  403,  412;  vol.  ii,  pp.  220,  280,  365,  425;  vol. 
iv,  p.  475;  vol.  vii,  p.  51S. 

3  Conn.  Col.  Rec,  vol.  i,  pp.  331,  339,  439;  vol.  ii,  p.  253;  vol.  iii, 
p.  11;    vol.  iv,  p.  129. 


§95l  Property  Qualifications  139 

Property  qualifications  were  introduced  into  Massachusetts 
first  through  the  Plymouth  colony,  in  1655,  requiring  "twenty 
pounds  ratable  estate,  at  the  least,  in  the  government"  before 
the  applicant  was  entitled  to  the  rights  of  a  freeman.^  A  pro- 
vision alternative  to  the  church  membership  qualification  was 
made  in  1691  for  the  Massachusetts  Bay  colony,  which  allowed 
those  to  vote  who  were  "householders,  and  who  had  an  estate, 
ratable  ...  in  a  single  county  tax  rate,  after  the  usual 
manner  of  valuation  in  the  place  where  they  live,  to  the 
full  value  of  tenne  shillings."  ^  In  1691,  these  two  colonies 
having  been  united  under  one  charter,  "an  estate  of  Freehold 
in  Land  within  Our  said  Province  or  Territory  to  the  value  of 
Forty  Shillings  per  Annum  at  the  least  or  other  estate  to  the 
Value  of  Forty  pounds  Sterl.,"  ^  became  the  property  quali- 
fication for  suffrage. 

In  Rhode  Island,  in  1665,  the  property  requirement  was 
"a  competent  estate."^  The  law  of  1723  prescribed  that  a 
"freeman  must  be  a  freeholder  of  Lands,  Tenaments,  and 
Hereditaments,  in  such  Towns  where  he  shall  be  admitted 
Free,  to  the  Value  of  One  Hundred  Pounds,  or  to  the  value  of 
40  shillings  per  a."  ^  Several  years  afterward  (1729)  the 
requirement  was  increased  to  two  hundred  pounds,  or  of  the 
value  of  ten  pounds  per  year.^  In  1746  it  was  again  doubled, 
making  it  four  hundred  pounds,  or  twenty  pounds  per  year.^ 
This  was  the  climax  of  exclusion  from  suffrage  by  imposition 
of  property  qualifications.  Twenty-one  years  later  (1767) 
the  prescription  became  forty  pounds,  or  an  annual  rental  of 
forty  shillings. 

A  property  qualification  was  imposed  in  New  Hampshire 
by  its  first   assembly,   but   was   soon   repealed.*      In    1699, 

^  Book  of  General  Laws  (1671),  ch.  5,  sec.  5. 
2  Mass.  Col.  Rcc,  II,  117,  167. 

*  Poore,  B.  P.,  Charters  and  Constilulions,  vol.  i,  p.  949. 

*  R.  I.  Col.  Rec,  vol.  ii,  p.  112. 

^  9  Geo.  I  (Franklin  ed.,  1730),  vol.  ii,  p.  131. 
'  3  Geo.  II  (Franklin  ed.,  1730),  p.  209. 
"  20  Geo.  II  (Franklin  ed.,  1752),  p.  13. 
'  Bishop,  C.  F.,  History  of  Elections,  p.  75. 


140  Qualifications  for  Suffrage  [§95 

however,  the  right  of  suffrage  was  restricted  to  freeholders 
having  forty  shillings  a  year  or  personal  property  of  fifty  pounds 
sterling.^  Later,  in  1729,  the  requirement  was  made  a  fifty 
pound  freehold  estate  in  the  town,  parish,  or  precinct  in  which 
the  voter  was  otherwise  qualified  to  vote  for  representatives.  ^ 

In  New  York  the  qualifications  for  suffrage  throughout  all 
the  colony  under  the  first  charter  of  liberties  included  a  free- 
hold according  to  the  laws  of  England;  under  the  second  char- 
ter a  freehold  with  forty  shillings  per  annum;  ^  and,  later, 
the  holding  of  "Lands  or  Tenements,  improved  to  the  value  of 
Forty  pounds  in  Freehold,  free  from  all  Incumbrances,"  was 
required."  * 

Locke's  constitution  in  Carolina  (1669)  prescribes  as  a  free- 
hold qualification  for  electors  that  none  shall  have  a  vote  for 
members  of  ParHament  "that  hath  less  than  fifty  acres  of 
freehold  within  the  said  precinct."  ^  A  freehold  qualification 
as  prescribed  was:  fifty  acres,  Maryland,  1678;^  East  Jersey, 
1683;^  or  have  fifty  pounds  lawful  money,  Pennsylvania, 
1696;^  New  Jersey,  1702;^  Delaware,  1734;^"  one  hundred 
acres.  North  Carolina,  1735,^^  and  Georgia,  1761.^2  These 
qualifications  were  further  extended  —  in  Pennsylvania  by  the 
requirement  that  the  fifty  acres  be  "well  seated  and  twelve 
acres  therein  well  cleared  and  improved,  or  fifty  pounds  per- 
sonal estate  ";^^  in  East  Jersey  that  ten  acres  be  in  cultivation.^* 

^  2  William  III,  Prov.  Papers,  vol.  iii,  p.  217. 

*  I  Geo.  Ill,  ch.  107  (Fowle  ed.,  1771),  p.  166. 
'  Bishop,  C.  F.,  History  of  Elections,  p.  75. 

*  2  William  III,  ch.  74,  Van  Schaack's  Laws,  p.  28. 

^  Poore,  B.  P.,  Charters  and  Constitutions,  vol.  ii,  pp.  1397  et  seq. 

*  Actof  Md.  of  1678;  4  Anne,  ch.  35;  i7i5,ch.42  (Baskett  ed.,  1723),  p.  131. 
^  Poore,  B.  P.,  Charters  and  Constitutions,  vol.  ii,  p.  1664. 

*  Poore,  B.  P.,  Charters  and  Constitutions,  vol.  ii,  p.  1533. 

'  7  Anne,  ch.  4,  sec.  i ,  Neville's  Laws,  p.  7 ;  8  Geo.  Ill,  AUinson's  Laws,  p.  306. 
"  7  Geo.  II,  ch.  6ia  (Franklin  and  Hall  ed.,  1752),  118. 
"  8  Geo. II, ch.  2;  17 Geo.  II,  ch.  i,  sec.  3.(Davis and  S waned.,  1752),  p.  177. 
"  Law  of  1 76 1,  June  9. 

"  Poore,  B.  P.,  Charters  and  Constitutions,  vol.  ii,  p.  1538;  4  Anne,  ch.  129 
(Franklin  ed.,   1742),  p.  67. 
"  Poore,  B.  P.,  Charters  and  Constitutions ^  vol.  ii,  p.  1397. 


§96]  Property  Qualifications  141 

An  alternative  qualification  was  provided,  however,  of  forty 
pounds  visible  estate  in  Maryland,^  in  New  Jersey  real  and 
personal  estate  of  fifty  pounds  sterling  value,^  and  in  Delaware 
personal  estate  of  forty  pounds.^ 

In  South  Carolina  (1692)  an  attempt  was  made  in  the  legis- 
lature to  reduce  the  property  qualifications  to  ten  pounds,  allow- 
ing an  applicant  to  make  oath  that  he  was  possessed  of  that 
amount,  but  the  law  was  vetoed  by  the  proprietors  on  account 
of  there  being  no  freehold  qualification.'*  In  1704  an  alterna- 
tive personal  property  qualification  of  ten  pounds  was  pro- 
vided; in  1716  the  personal  qualification  was  raised  to  thirty 
pounds.  In  17 17  the  fifty-acre  freehold  qualification  allowed 
an  alternative  of  taxes  on  fifty  pounds;  in  1721  the  tax  alter- 
native was  made  twenty  shillings;  in  1745  provision  was  made 
that  the  freehold  must  be  cultivated,  or,  if  not  cultivated, 
that  there  must  be  three  hundred  acres  on  which  taxes  are 
paid,  and,  in  1759,  the  freehold  qualification  was  made  one 
hundred  acres,  or  a  tax  of  ten  shillings.^ 

96.  State  Property  Qualifications  for  Voting 

After  the  Declaration  of  Independence  property  qualifica- 
tions appear  in  the  following  constitutions:  In  Connecticut, 
1818,^  freehold;  in  Louisiana,  1812,^  land;  in  Maryland,  1776,^ 
fifty  acres  of  land  or  other  property,  worth  thirty  pounds;  in 
Massachusetts,  1780,  a  "freehold  estate  within  the  common- 
wealth of  the  annual  income  of  three  poimds,  or  any  estate  of 
the  value  of  sixty  pounds"  for  senatorial  elector,  and  a  "free- 
hold of  the  value  of  one  hundred  pounds,  within  the  town  he 
shall  represent,  or  any  ratable  estate  of  the  value  of  two  hun- 
dred pounds"^  for  electors  of  representatives;    in  Mississippi 

^  2  Charles,  Lord  Baltimore,  1716,  ch.  ii,  sec.  3;  Bacon's  Laws. 

*  7  Anne,  ch.  iv,  sec.  I,  Neville's  Laws,  pp.  7,  8;  Geo.  Ill,  AHinson's  Laws, 
p.  306.  *  7  Geo.  II,  ch.  6ia,  sec.  2  (FrankHn  and  Hall  ed.),  p.  118. 

*  Bishop,  C.  F. ,  History  of  Elections,  p.  78,  note  I. 

*  Cooper,  vol.  ii,  pp.  249,  683;  vol.  iii,  pp.  2,  135,  657;  vol.  iv,  p.  98. 

«  Conn.,  1818,  VI,  2.       ^  La.,  1812,  II,  8.       «  Md.,  1776,  IL 
8  Mass.,  1780,  ch.  I,  sec.  2,  art.  II,  sec.  3,"art.  III. 


142  Qualifications  for  Suffrage  [§96 

(territorial  government),  1808/  "fifty  acres,  or  who  may  hold 
in  his  own  right  a  town  lot  of  the  value  of  one  hundred  pounds 
within  the  said  territory";  in  New  Jersey,  1776,  "fifty  pounds 
proclamation  money,  clear  estate  in  the  same";^  New  York, 
1777,  "a  freehold  of  the  value  of  twenty  pounds"  or  a  tenement 
"of  the  yearly  value  of  forty  shillings,"  for  electors  of  assembly- 
men and  a  freehold  of  one  hundred  pounds  for  electors  of 
senators  and  governor.^  The  New  York  constitutions  of 
182 1  *  and  1846  ^  also  required  a  two  hundred  and  fifty  dollar 
freehold  estate  of  free  colored  persons;  North  Carolina,  1776,  "a 
freehold  estate  within  the  same  county  where  resident  of  fifty 
acres  of  land,"  for  senatorial  electors,  and  an  alternative  tax 
or  freehold  qualification  for  representatives;  ^  by  amendment, 
1835,''  the  freehold  qualification  for  senatorial  electors  was  re- 
tained; Rhodelsland,  1842,^ "real  estate  .  .  .  of  the  value  of  one 
hundred  thirty-four  dollars,  over  and  above  all  incumbrances,  or 
which  will  rent  for  seven  dollars  per  annum,  over  and  above 
any  rent  reserved,  or  the.  interest  of  any  incumbrance  there- 
on";^ South  Carolina,  1778,^°  a  freehold  of  at  least  fifty  acres 
of  land,  or  a  town  lot;  ^^  1790,^-  fifty  acres,  a  town  lot  or  a  tax; 
Tennessee,  1796, ^^  a  freehold;  Virginia,  1776,^^  "shall  remain  as 
exercised  at  present"  —  that  is,  the  same  as  under  the  last 
colonial  acts;  1830,^^  "qualified  to  exercise  the  right  of  suffrage 
according  to  the  former  constitution  and  laws";  .  .  .  or  "an 
estate  of  freehold  in  land  of-  the  value  of  twenty-five  dollars, 
and  so  assessed  to  be,  if  any  assessment  thereof  be  required  by 
law;  and  every  such  citizen  being  possessed  as  tenant  in  com- 

1  Miss.,  Ter.,  Gov.,  1808,  sec.  I.  ^  N.  Y.,  1846,  II,  i. 

2  N.  J.,  1776,  IV.  6  N.  C,  1776,  VII. 

»  N.  Y.,  1777,  VII,  X.  ">  N.  C,  Amend.,  1835,  II,  3. 

«N.  Y.,  1821,11.  8  R.  I.    1842,  II,  I. 

'  This  provision  in  the  constitution  further  sets  forth  the  alternative  of  a 
tax.  i»  S.  C,  1778,  XIII. 

1*  An  alternative  tax  qualification  is  also  provided. 
^*  S.  C,  1790,  I,  4,  5;  see  also  amendment,  1810. 
"Tenn.,  1796,  III,  I. 

"  Poore,  B.  P.,  Charters  and  ConstUutions,  vol.  ii,  p.  1910. 
»  Va.,  1830,  III,  14. 


§97]  Tax  Qualifications  143 


mon,  joint  tenant,  or  partner  of  an  interest  or  share  of  land,  and 
having  an  estate  of  freehold  therein"  of  the  value  of  twenty- 
five  dollars;  "and  every  citizen  being  entitled  to  a  reversion  or 
vested  remainder  in  fee,  expectant  or  an  estate  for  Hfe,  or  lives 
in  land  of  the  value  of  fifty  dollars,"  a  leasehold  estate  "of  a 
term  originally  not  less  than  five  years,  of  an  annual  value  or 
rent  of  twenty  dollars,"  or  a  tax  qualification;  Georgia,  1777,^ 
property  of  ten  pounds  value  and  liable  to  the  payment  of 
taxes  ^;  Vermont,  1798,'  "freeman,  having  a  sufiicient  evident 
common  interest  with  and  attachment  to  the  community";^ 
1793,^  this  provision  was  re-enacted. 

The  property  qualifications  were  abolished  in  the  several 
states  mentioned  as  follows:  Connecticut,  1845;  Georgia, 
1789;  Louisiana,  1845;  Maryland,  1810;  Massachusetts,  1822; 
Mississippi,  1817;  New  Jersey,  1S44;  New  York,  1821,  except 
for  persons  of  color;  North  Carolina,  1854;  South  Carolina, 
1865;  Tennessee,  1834;  Virginia,  1850. 

97.   Colonial  Tax  Qualifications  for  Voting 

The  inequity  of  the  principle  of  an  exclusive  freehold  or  house- 
hold qualification  impressed  itself  upon  the  colonists  at  an  early 
date.  We  have  already  noted  that  Virginia  burgesses  repealed 
the  laws  of  1655  limit'ng  the  franchise  to  "housekeepers,  whether 
freeholders,  leaseholders  or  other  tenants,"  because  they 
thought  it  "something  hard  and  unagreeable  to  reason  that 
any  pefson  shall  pay  equall  taxes,  and  yet  have  no  votes  in  the 
elections."  "^  But  the  foreign  influence  was  too  strong  to  resist, 
and  for  some^hing  over  a  century  property  qualifications  thrived. 
The  increase  of  economic  interests,  other  than  agricultural, 

1  Ga.,  1777   IX. 

*  In  this  thj  tax  qualification  is  in  addition  to  the  property  qualification 
instead  of  bei  ig  an  alternative. 

'  Vt.,  i78f,ch.  i,  art.  IX. 

*  This  mi  ,'ht  be  construed  into  a  property  qualification,  but  the  other 
clauses  of  thi  constitution  seem  to  give  it  a  different  meaning.  The  writer 
has  no  know  edge  as  to  the  construction  actuall}'  given. 

sVt.,  1793,  art.  VIII. 
'  I  Henin  ;,  403. 


144  Qualifications  for  Suffrage  [§97 

the  growth  of  manufactures  and  commerce,  finally  demanded 
that  the  suffrage  be  so  broadened  as  to  mclude  other  forms  of 
property.  The  personal  property  qualification  took  its  place 
alongside  of  the  real  property  requirement.  Later  this  proved 
unsatisfactory,  and  another  EngUsh  device  was  made  use  of  by 
the  colonists  through  the  substitution  of  the  tax  qualification.^ 
The  idea  that  there  should  be  no  taxation  without  representa- 
tion had  become  axiomatic  in  English  political  life,  and  was 
appealed  to  most  strongly  by  America  immediately  prior  and 
subsequent  to  the  Revolutionary  War.  The  tax  qualification 
had  been  little  employed  during  the  colonial  period,  but  grad- 
ually the  property  qualifications  were  made  alternative  with 
that  of  taxation,  or  were  entirely  supplanted  by  it. 

In  Pennsylvania  by  the  "Frame  of  Government,"  made  and 
granted  by  WilUam  Penn  (1683)  in  the  "Laws  agreed  upon  in 
England,"  "every  inhabitant,  artificer  or  other  resident  in  the 
said  province  that  pays  scot  and  lot  to  the  government"  ^ 
was  deemed  and  accoimted  a  freeman,  the  same  as  one  having 
real  property  qualifications;  in  North  Carohna  (17 15)  ^  suf- 
frage was  given  to  those  who  had  paid  taxes  for  the  year  pre- 
ceding the  election;  in  South  Carolina  (1717)^  persons  liable 
to  payment  of  taxes  were  accorded  the  privilege,  and  by  the 
laws  of  1721,  1745,  1759,^  the  tax  qualification  was  continued 
in  different  forms.  These  cases,  however,  at  this  early  date, 
may  be  stated  as  the  exception  rather  than  the  rule.  Later 
the  alternative  qualifications  became  the  rule,  and  in  the  early 
part  of  the  national  period  the  tax  qualifications  began  to 
supplant  the  property  quaUfication.  This  is  seen  in  the  con- 
stitutions of  Delaware,^  Georgia,^  Massachusetts,^  Mississippi,^ 

1  Bishop,  C.  F.,  History  of  Elections,  p.  78.  2  Penn.,  1683,  II. 

3  Laws,  1715,  North  Carolina  Col.  Rec,  vol.  iii,  p.  213. 
*  Acts  1717,  No.  373,  sec.  9. 
^  Cooper,  vol.  iii,  pp.  135,  657;   vol.  iv,  p.  98. 
6  Del.,  1792,1V,  I ;  1831,  IV,  I. 

1  Ga.,  1777,  IX;  1789,  IV,  i;  1798,  IV,  i;  1865,  V,  i;  1686,  II,  2;  1877,  H, 
par.  I,  2. 

8  Mass.,  Amend.,  1822,  art.  III. 

»  Miss.,  1817,  III,  i;  1890,  XIV,  241. 


§98]  Manhood  Suffrage  145 

Missouri/     New    York/  North    Carolina/   Ohio/    Pennsyl- 
vania/ Virginia/  and  Connecticut/ 

Gradually  these  tax  qualifications  are  being  eliminated, 
although  a  few  of  them  still  remain  in  the  older  states.  In 
some  of  the  states,  however,  a  new  use  of  property  and  tax 
qualification  is  being  made.  Where  matters  of  financial  impor- 
tance are  submitted  to  a  vote  of  the  people,  before  they  are 
made  binding,  as  in  Texas  ^  and  in  Colorado,^  it  is  required  that 
those  who  vote  thereon  shall  be  taxpayers,  or  shall  have  paid 
a  property  tax  during  the  year  previous  to  the  election.  Such 
provision  seems  most  wholesome,  as  a  bonded  debt  is  in  the 
nature  of  an  incumbrance  on  property,  and,  therefore,  those 
who  do  not  own  property,  and  will  not  be  called  upon  to  assist 
in  the  payment  of  the  debt,  should  not  be  allowed  to  impose  it. 
Their  powers,  it  would  seem,  should  be  limited  to  current 
taxation. 

98.  Manhood  Suffrage  in  the  States 

With  the  breaking  away  from  property  qualifications  and  the 
adoption  of  those  based  on  the  payment  of  taxes,  mihtary  serv- 
ice,^" labor  on  roads,"  etc.,  were  in  some  states  made  equivalent 
to  taxes.  The  tide  of  popular  opinion,  however,  demanding 
manhood  suffrage,  rose  to  such  heights  that  nearly  all  pro- 
visions short  of  this  were  finally  swept  away.  The  impetus 
given  to  democracy  by  the  successful  issue  of  the  Revolution- 
ary War  was  not  such  as  to  sweep  away  all  restrictions  at 
once.     During   the   period   of   the   struggle  for   freedom  the 

^  Mo.,  Ter.  Gov.,  1812,  sec.  6. 
2N.  Y.,  1821,  II,  i;  1846,  II,  I. 
»  N.  C,  1776,  VII,  VIII,  and  IX. 

*  Ohio  Const.,  1802,  IV,  i. 

^  Penn.,  1776,  Plan,  sec.  6;  1790,  III,  i;  1838,  III,  i;  1873,  VIII,  i. 
6  Va.,  1830,  III,  14;  1864,  III,  i;  Am.,  1876,  III,  i. 
">  Conn.,  1818,  VI,  2. 

*  Texas,  1876,  VI,  3. 
»  Colo.,  1876,  XI,  8. 

»"  Conn.,  1818,  IV,  2;  Fla.,  1838,  VI,  i;  Miss.,  1817,  III,  i;  N.  Y.,  1821,  II, 
i;  R.  I.,  1842,  II,  2. 
"  N.  Y.,  1821,  II,  i;  Ohio,  1802,  IV,  5. 
II 


146  Qualifications  for  Suffrage  [§98 

American  people  were  being  schooled  in  the  development  of 
established  institutions  and  in  the  maintenance  of  a  self- 
imposed  order.  The  general  welfare  being  foremost  in  the 
minds  of  the  people,  the  order  necessary  to  this  welfare  was  a 
force  which  made  for  a  kind  of  conservatism  unknown  in  other 
lands.  Change  came  only  as  industrial  interests  demanded  it. 
The  justice  of  manhood  suffrage  had  impressed  itself  on  the 
popular  mind  many  years  before  manhood  suffrage  was  real- 
ized as  a  fact. 

A  most  interesting  demonstration  of  this  conservatism,  and 
at  the  same  time  of  the  evolutionary  trend  of  our  institutions 
in  this  particular,  appears  in  the  constitutional  convention  of 
New  York,  182 1.  The  constitution  of  1777  had  prescribed  a 
land  qualification  for  voters  in  all  parts  of  the  state  except  in 
New  York  City  and  Albany.^  There  was  a  strong  party  in  the 
state  to  uphold  this  on  conservative  grounds.  The  contest 
in  this  convention  of  1821  was  a  spirited  one;  but  finally  the 
land  qualification  was  aboUshed  for  all  except  free  men  of  color, 
who  were  required  to  have  a  freehold  of  the  value  of  two  hun- 
dred and  fifty  dollars.^  As  to  all  others  it  was  decided  that 
service  to  the  state  was  the  proper  basis  for  participation  in 
acts  of  government,  and  thereupon  the  following  alternatives 
were  given:  "Every  male  citizen  of  the  age  of  twenty-one  years 
who  shall  have  been  an  inhabitant  of  the  State  .  .  .  and  shall 
have,  within  the  year  next  preceding  the  election,  paid  a  tax 
to  the  State  or  county  assessed  upon  his  real  or  personal  prop- 
erty; or  shall  by  law  be  exempt  from  taxation;  or  being  armed 
and  equipped  according  to  law,  shall  have  performed  within 
that  year  military  duty  in  the  militia  of  the  State;  or  shall  be 
exempt  from  performing  mihtary  duty  in  consequence  of  being 
a  fireman  in  any  city,  town,  or  village  in  this  State  .  .  .  ;  or 
within  the  last  year,  assessed  to  labor  upon  the  pubHc  high- 
ways and  shall  have  performed  the  .labor,  or  paid  an  equivalent 
therefor,  according  to  law,  shall  be  entitled  to  vote  in  the  town 
or  ward  m  which  he  actually  resides."  This  was  a  compromise 
1  N.  Y.  Const.,  1777,  VII.  2  N.  Y.,  1821,  II,  i. 


§99]  Race  Qualifications  147 

between  the  principle  of  manhood  suffrage  and  property  suf- 
frage, involving  the  idea  of  representation  on  the  basis  of  taxa- 
tion, so  modified  as  to  include  all  manner  of  service  to  the  state. 
It  was  but  a  step  further  to  manhood  suffrage,  yet  this  was  not 
taken  in  this  state  for  about  fifty  years. 

99.  Race  and  Status  Qualifications  for  the  Suffrage 

Along  with  property  qualifications  came  those  based  on  legal 
social  status.  They  both  belonged  to  the  same  polity,  were 
imported  from  the  same  source.  The  former  came  from  the 
monarchical  and  feudal  ideas  of  Europe.  Slavery  and  bond 
service  were  of  the  same  origin.  In  fact,  we  may  say  wathout 
danger  of  contradiction  that  slavery  was  foisted  on  America 
in  the  same  spirit  that  the  lands  were  apportioned  and  occu- 
pied by  those  receiving  patents.  With  the  breaking  down  of  our 
institutional  dependence  on  England,  the  support  of  property 
qualifications  for  suffrage  decayed.  The  whole  tendency  of 
American  political  thought  was  in  the  opposite  direction,  and 
it  only  remained  for  the  interests  and  industrial  acti\dties 
of  society  so  to  adjust  themselves  as  to  require  a  change  in  the 
established  rule  of  law.  The  qualifications  based  on  the  legal 
status,  however,  having  been  once  introduced,  were  on  a  differ- 
ent plane.  They  entered  into  the  social  fabric,  became  a  part 
of  our  industrial  system  in  those  regions  where  slavery  was 
economically  advantageous.  The  whole  web  and  woof  of  our 
social,  industrial,  and  legal  system  supported  them;  and  instead 
of  disappearing  with  the  withdrawal  of  those  forces  which  had 
been  instrumental  in  implanting  them,  they  grew  and  assumed 
a  more  permanent  part.  The  conditions  of  the  whole  country 
were  at  first  favorable  to  servitude  and  slavery.  When  the 
country  was  first  opened  it  was  highly  advantageous  to  the 
master,  the  planter,  the  lord  to  have  a  servile  class  which  he 
could  command.  It  was  a  profitable  way  of  organizing  the 
industrial  forces  for  the  estabhshment  of  society  in  a  wilder- 
ness, or  upon  raw  agricultural  lands.  The  necessary  means  for 
a  livehhood,  a  competence  for  Life,  ha\dng  been  secured,  however, 


148  Qualifications  for  Suffrage  [§99 

the  servile  bonds  became  onerous  to  a  large  part  of  society.  In 
those  places  where  commerce  and  manufacture  occupied  the 
industrial  energies,  slavery,  even  apprenticeship,  was  found 
to  be  unfavorable,  and  disappeared  with  the  changed  condi- 
tions of  society. 

But  in  certain  regions  the  economic  development  was  such  as 
to  make  slavery  and  social  dependence  advantageous  to  those 
in  control  of  the  industrial  forces,  and  the  legal  and  poUtical 
systems,  reflecting  this,  threw  the  institutions  of  the  various 
members  of  the  national  federation  out  of  harmony.  This 
conflict  of  interests,  asserting  itself  in  the  armed  violence  of 
the  Civil  War,  resulted  in  the  estabUshment  of  a  stronger 
industrial  poHty  and  the  consequent  remoulding  of  suffrage 
qualifications. 

Disqualification  for  the  suffrage  because  of  servitude  by 
indenture  was  imposed  in  all  of  the  colonies;  but  this  form  of 
servitude  passed  away,  and  with  it  the  general  disquahfications. 
Those  based  on  the  legal  status  of  slavery,  so  far  as  they  are 
contamed  m  express  pro\dsions,  had  their  begmmng  m  the  early 
part  of  the  eighteenth  century  and  were  confined  to  the  South. 
There  was  no  colonial  statute  in  the  North  to  prevent  any  negro, 
if  free,  from  voting.^  In  North  CaroUna,  after  1715,2  no  negro 
or  mulatto  could  vote;  in  South  CaroUna  (1716)  ^  suffrage  was 
restricted  to  white  men.^  Georgia  also  estabHshed  the  same 
restrictions  in  1761,^  and  in  1762  «  Virginia  also  excluded  the 
blacks.  Slavery  at  all  times  disquahfied,  and  during  the 
national  period  the  fact  foimd  expression  in  the  constitutions  of 
many  of  the  states  where  slavery  was  allowed.  In  some  this 
color  qualification  was  repealed  before  the  Civil  War,  but  most 
of  them  awaited  the  action  of  the  fourteenth  amendment. 

1  Bishop,  C.  F.,  History  of  Elections,  p.  51. 

*  N.  C.  Col.  Rec.  vol.  ii,  pp.  214-15. 

» Act  1 716,  No.  365-,  sec.  XX.  This  act  was  followed  by  those  of  171 7, 
No.  373;  1719,  No.  394;  1721,  No.  446;  1V45,  No.  730,  in  which  the  same 
restriction  was  maintained. 

<  Negroes  were  sometimes  allowed  to  vote  in  derogation  of  law. 

6  Law  of  1761,  June  9.      «  3  Geo.  Ill,  ch.  i,  sec.  7;  Hening,  vol.  vii,  p.  519- 


§§ioo,  loil  Summary  149 


100.  Sex  Qualifications  for  the  Suffrage 

Nine  of  the  states  have  made  provision  for  woman  suffrage 
in  all  elections.^  In  municipal  and  general  elections,  however, 
we  are  now  in  the  experimental  stage.  If,  in  the  states  where 
the  change  has  been  made,  the  experiment  proves  beneficial, 
the  question  of  expediency  will  be  solved. 

101.  Stuninary  of  Present  Qualifications  for  the  Suffrage 

That  the  quahfications  are  growing  less  restrictive  and 
popular  co-operation  in  government  is  becoming  more  widely 
extended  will  appear  conclusively  from  the  following  classi- 
fication of  constitutional  provisions: 

1 .  Those  allowing  free  white  male  citizens  (or  those  declaring 
intentions)  twenty-one  years  of  age,  with  statutory  residence.^ 

2.  Those  allowing  white  male  citizens  (or  those  declaring 
intentions)  twenty-one  years  of  age,  with  statutory  residence.' 

^  Wyoming,  Colorado,  Utah,  Idaho,  Washington,  California,  Arizona, 
Kansas,  and  Oregon. 

2  Ark.,  Ter.  Gov.,  1819,  sec.  6;  Const.,  1836,  IV,  2;  1864,  IV,  2;  Colo., 
Ter.  Gov.,  1861,  sec.  5;  Del.,  1792,  IV,  i;  Kans.,  Ter.  Gov.,  1854;  Fla.,  1865, 
VI;  Ga.,  1865,  V,  i;  Iowa,  Ter.  Gov.,  1838,  sec.  5;  Ky.,  1799,  II,  8;  1850,  II, 
8;  La.,  1845,  II,  10;  1852,  II,  10;  1812,  II,  8;  Md.,  1810,  Am.  XIV;  1851, 1,  i; 
Minn.,Ter.  Gov.,  1849,  sec.  5;  Miss.,  Ter.  Gov.,  1808, sec.  i;  i8i7,III,  i;  1817, 
Sched.,  sec.  6;  1832,  III,  i;  Mo.,  Ter.  Gov.,  1812,  sec.  6;  1820,  III,  10;  Nev., 
Ter.  Gov.  1861,  sec.  5;  N.  C,  Am.,  1854,  I,  3;  S.  C,  1778,  XIII;  1790, 1,  4; 
Am.,  1810;  1865,  IV;  Tenn.,  1834,  IV;  Tex.,  1845,  HI,  i;  1866,  III,  i;  Utah, 
Ter.  Gov.,  1830,  V;  Wis.,  Ter.  Gov.,  1836,  5. 

8  Ala.,  1819,  III,  s;  1865,  VIII,  i;  Cal.,  1849,  H,  i;  Conn.,  1818,  VI,  2; 
Am.,  1845,  VIII;  Ga.,  1777,  IX;  111.,  1818,  Sched.  12;  1848,  VI,  i;  Ind.,  1816, 
VI,  i;  1851,  II,  2;  Iowa,  1846,  II,  i;  1857,  II,  i;  Kans.,  1855,  II,  2;  1859,  V, 
i;  La.,  1864,  III,  14;  Md.,  1864, 1,  i;  1867, 1,  i;  Mich.,  1835,  II,  i;  1850,  VII, 
i;Minn.,  1857,  VII,  i;Mo.,  1865,  II,  18;  Neb.,  1866,  II,  2;  Nev.,  1864,11,  i; 
N.  J.,  1844,  II,  i;  Ohio,  1802,  IV,  i;  1851,  V,  i;  Ore.,  Ter.  Gov.,  1848,  5; 
1857,  II,  2;  Penn.,  1838,  II,  i  (White  Freeman);  Va.,  1830,  II,  14;  1850, 
II,  i;  1864,  III  i;  W.  Va.,  1861-63,  III,  i;  Wis.,  1848,  III,  i.  Included 
Indians  under  certain  restrictions,  and  by  court  decisions.  Colored  persons 
included  by  vote  of  the  people  in  November,  1849  (Poore,  Charters  and 
Constitutions,  p.  2030);  Ala.,  1867,  VII,  2;  1875,  VIII;  1901,  VIII;  Ark., 
1868,  VIII,  2;  1874,111,1;  Cal.,  1880,  II,  i;  Colo.,  1876,  VII,  i;  Del., 
1907,  V,  2;    Fla.,   1868,   XV,   i;    1887,  VI,  i;  Ga.,    1868,   II,   2;   1877, 


I50 


Qualifications  for  Suffrage 


lOI 


3.  Those  allowing  male  citizens  (or  those  declaring  intentions) 
twenty-one  years  of  age,  with  statutory  residence.^ 

4.  Those  allowing  a  citizen   (or  one  declaring  intentions) 
twenty-one  years  of  age,  with  statutory  residence. 

II,  2;  111.,  1870,  VII,  i;  Iowa,  Am.,  1868;  Kans.,  1857,  VIII,  i;  1864, 
II;  1858,  II,  i;  1859,  V,  2;  Ky.,  1891,  145;  La.,  1868,  art.  98;  1902, 
art.  197,  i;  1879,  185;  Me.,  1820,  II,  i;  Mich.,  Am.,  1870;  1908,  III, 
i;  Minn.,  1868,  Am.  VII,  i;  Miss.,  1S68,  VII,  2;  1890,  241;  Mo.,  Am., 
1870,11,1;  1875,  VIII,  2;  Neb.,  1875,  VII,  i;  N.  H.  Senate,  1792,  sees. 
13,  28,  42;  N.  J.,  1875,  Am.  II,  i;  N.  Y.,  1777,  VII;  Am.,  1874,  II,  i;  N.  C, 
1868,  VI,  i;  1876,  VI,  i;  Penn.,  1873,  VIII,  i;  R.  I.,  1842,  II,  i;  S.  C,  1868, 
VIII,  i;  Tex.  (Coahuila  and  Texas),  1827,  24  (every  citizen);  1836,  VI, 
Sched.  i;  1868,  III,  i;  Tenn.,  1780;  Va.,  1870,  III,  i;  1902,  II,  18;  W.  Va., 
1872,  IV,  I. 

^  Wyoming,  Colorado,  Utah,  Idaho,  Washington,  Georgia,  1789,  IV,  i. 


CHAPTER  XI 

WOMAN  SUFFRAGE 

102.   References 

Bibliography:  Josephine  O'Flynn,  A  reading  List  of  Books  and  Parts 
of  Books  on  Woman's  Sufrage  (Bulletin  of  Bibliography,  Boston  Publ.  Libr., 
1910);   R.  C.  Ringwalt,  Briefs  on  Public  Questions  (1905),  8-16. 

General  Works. —  Favorable :  W.  H.  Allen,  Woman's  Part  in  Government 
(1911);  E.  A.  Hecker,  A  Short  History  of  Woman's  Rights  (1910),  chs.  vii, 
viii;  E.  C.  Stanton  and  others.  History  of  Woman's  Sufrage  (4  vols.,  1902); 
Helen  Sumner,  Equal  Sufrage  (1909);  Bertha  Rembaugh,  The  Political 
Status  of  Women  in  the  U.  S.,  a  digest  of  the  laws  (1912).  —  Unfavorable: 
L.  Abbott,  Why  Women  do  not  wish  the  Sufrage  (1904);  J.  M.  Buckley, 
Wrong  and  Peril  of  Woman  Sufrage  (1909);  Goldwin  Smith,  Essays  on 
Questions  of  the  Day  (2d  ed.,  1897),  183-218;  W.  S.  Bushnell,  Woman 
Sufrage — The  Reform  Against  Nature  (1870);  A.  V.  Dicey,  Letters  to  a 
Friend  on  Votes  for  Women  (1909);  MoUey  E.  Seawell,  The  Ladies'  Battle 
(1911). 

Pamphlets,  Bulletins,  Magazines,  etc.:  Publications  of  "The  League 
of  Self-Supporting  Women,"  "International  Woman  Suffrage  Alliance," 
"National  American  Woman  Suffrage  Association,"  "Interurban  Woman 
Suffrage  Council";  Magazines:  Progress,  The  American  Sufragette  (June, 
1909  to  date).  Woman's  Journal. 

103.  Citizenship  not  Dependent  on  Sex 

Inasmuch  as  the  primary  purpose  for  which  democratic  or 
republican  government  is  estabUshed  and  maintained  is  the 
welfare  of  citizens,  there  can  be  no  question  that  the  govern- 
ment of  the  United  States  was  established  for  the  equal  protec- 
tion and  advantage  of  all  free  persons  who  reside  within  its 
jurisdiction  and  who  do  not  owe  allegiance  to  any  other  govern- 
ment, Indians  excepted.  As  has  been  said  by  Professor  Hart: 
"Citizenship  is  a  privilege  which  attaches  not  only  to  men, 
but  to  women  and  cliildren  down  to  the  very  youngest: 
convicts,  paupers,  insane  persons,  may  be,  and  usually  are, 
citizens,  and  as  such   are   entitled  to  the  care  and   protection 


ir2  Woman  Suffrage  [§103 

of  the  state."  ^  The  fourteenth  amendment  defines  citizens  as 
"  All  persons  born  or  naturalized  in  the  United  States  and  sub- 
ject to  the  jurisdiction  thereof." 

The  rights  and  guarantees  of  the  constitutions  of  the  states 
are  equally  for  the  benefit  of  all  citizens,  male  and  female. 
Among  these  are:  the  right  to  the  writ  of  habeas  corpus;  im- 
mimity  from  the  acts  of  federal  agents  through  bills  of  attainder 
and  ex  post  facto  laws  and  from  acts  impairing  the  obUgations 
of  contracts;  the  rights  of  freedom  of  worship,  freedom  of 
speech,  free  press,  peaceable  assembly;  petition  to  the  govern- 
ment for  the  redress  of  grievances;  freedom  from  imreasonable 
searches  and  seizures;  the  right  to  keep  and  bear  arms;  freedom 
from  trial  for  crimes  except  on  presentment  or  indictment  of  a 
grand  jury;  protection  against  being  twice  put  in  jeopardy  for 
the  same  offence  and  against  being  required  to  be  a  witness 
against  oneself  in  a  criminal  case;  against  being  deprived  of 
life,  liberty,  or  property  without  due  process  of  law,  or  having 
property  taken  by  the  government  without  just  compensation. 
Citizens  are  also  equally  guaranteed  protection  against  the 
arbitrary  acts  of  state  governments  which  would  impair  the 
equality  of  the  citizens'  "privileges  and  immunities"  or  deprive 
them  of  the  benefits  of  a  "republican  form  of  government." 
The  citizen  is  given  the  right  to  a  speedy  trial;  to  be  con- 
fronted with  witnesses  against  him;  to  trial  by  jury  in  civil 
causes;  to  have  compulsory  process  for  obtaining  witnesses  in 
his  favor  and  assistance  of  counsel  in  his  defence,  and  is  protected 
against  excessive  bail,  excessive  fines,  and  cruel  and  unusual 
punishments.  In  most  cases  the  guarantees  of  the  federal 
constitution  apply  only  against  invasion  of  rights  under  cover 
of  federal  authority. 

These  rights  which  relate  to  the  equal  protection  of  all  citizens 
are  still  further  enlarged  upon  in  the  state  constitutions.  More- 
over, there  are  many  common  law  rights  which  were  not  con- 
travened either  by  the  federal  or  state  constitutions,  such  as: 
the  right  to  know  what  the  government  is  doing,  and  how 
^  Hart,  Actual  Governinent,  p.  15. 


§104]  Functions  of  Government  153 

far  its   agents  are  executing  and  how  far  failing  to  execute 
public  duties. 

Many  restrictions  upon  women  imposed  in  the  past  either 
by  statute  or  custom  have  been  gradually  removed.  She  no 
longer  lacks  the  opportunity  to  obtain  such  education  as  she 
may  wish,  although  not  always  at  the  particular  institution  she 
may  desire.  In  practically  all  places  she  may  enter  any  occupa- 
tion or  practice  any  profession  not  dangerous  to  her  health  and 
safety.  In  three-fourths  of  the  states  a  woman  may  own  and 
control  her  separate  property  and  leave  it  by  will;  in  a  majority 
of  the  states  she  is  entitled  to  the  sole  use  and  enjoyment  of  her 
earnings,  though  her  husband  may  be  liable  for  her  debts.  In 
practically  all  she  may  contract  and  bring  suit  in  her  own  name. 
In  several  states  she  has  the  right  of  equal  guardianship  over 
the  children.  The  so-called  married  women's  acts  passed  in 
New  York  in  the  middle  of  the  nineteenth  century  are  typical 
of  the  general  improvement  of  women,  and  especially  of  married 
women.  In  the  states  where  the  idea  of  "community  of 
property"  has  been  enacted  into  law,  husband  and  wife  are  the 
coequal  members  of  the  "community"  (family),  joint  owners 
of  property  and  joint  guardians  of  the  interests  of  the  children. 

104.  Relation  of  Woman's  Suffrage  to  the  Functions  of  Government 

The  evolution  of  electoral  qualifications  has  been  a  movement 
which  has  reflected  the  judgment  of  the  community  as  to  who 
are  best  qualified  to  think  on  subjects  of  community  needs 
which  may  be  served  by  the  government.  Applying  this  general 
principle  to  the  subject  before  us,  we  may  fairly  ask  ourselves 
whether  by  the  broadening  of  the  electoral  qualifications 
to  include  women  who  have  attained  their  majority,  the  elec- 
torate will  be  better  able  to  exercise  judgment  about  acts  of 
officers  and  governmental  agents  —  i.e.,  better  able  to  express 
the  will  of  the  people  on  questions  before  the  electorate  than 
if  the  electoral  qualifications  be  limited  to  men.  This  question 
cannot  be  answered  unless  it  be  considered  in  relation  to  each 
of  the  several  classes  of  activities  performed. 


154  Woman  Suffrage  [§104 

/ 

Grouped   according   to   welfare   relations,  the  work  of   the 

government  may  be  classified  as  follows: 

I.  Activities  having  to  do  with  the  conservation  of  the  state: 

1.  National  defence. 

2.  Maintenance  of  friendly  relations  with  foreign  powers. 

II.  Activities  having  to  do  with  the  conservation  of  the 
individual  and  the  protection  of  his  personal  rights : 

3.  Protection  of  American  interests  abroad. 

4.  Protection  of  persons  and  property  within  the  juris- 
diction of  the  United  States. 

5.  Protection  and  promotion  of  the  interests  of  the  work- 
ing classes. 

6.  Protection  and  promotion  of  public  health. 

7.  Promotion  of  public  education,  art,  science,  and  recrea- 
tion. 

8.  Care  and  education  of  the  dependent,  defective,  and 
delinquent. 

9.  Care  and  education  of  the  Indian  and  other  wards 
of  the  nation. 

10.  Equalization  and  distribution  of  personal  risk  and  of 
the  effects  of  amortization  —  pensions  and  insurance. 

III.  Activities  having  to  do  with  the  conservation  of  natural 
economic  resources  of  the  nation: 

11.  Distribution  and  utilization  of  the  public  domain. 

12.  Control  over  the  natural  monopolies,  such  as  rivers, 
water  power,  etc. 

13.  Promotion  of  agriculture,  forestry,  mining,  fisheries, 
game,  etc. 

14.  Promotion  of  manufactures,  commerce,  banking, 
savings,  etc. 

15.  Promotion  of  transportation  and  communication, 
including  public  roads,  canals,  railroads,  telegraph, 
telephone,  and  postal  service. 

Fair  consideration  given  to  each  of  these  subjects  will  show 
that  with  respect  to  most  of  the  functions  of  government  women 
are  quite  as  competent  to  discharge  the  responsibihties  of  an 


§§  I05,  io6]       Community  of  Interest  155 

electorate  as  are  men ;  with  respect  to  many  they  are  much  better 
equipped  for  the  exercise  of  judgment  incident  to  the  expres- 
sion of  pubHc  opinion.   1^ 

105.   Community  of  Interest  in  the  Conservation  of  the  State 

Both  sexes  are  concerned  in  questions  pertaining  to  national 
defence.  While  in  case  of  war  men  are  drawn  into  armies  and 
incur  the  greater  personal  risk,  the  increased  burden  of  civil 
life  falls  more  largely  on  women.  The  ability  of  a  nation  to 
survive  when  at  war  depends  as  much  on  the  one  sex  as  on  the 
other.  Both  are  equally  concerned  in  international  relations, 
in  the  protection  and  maintenance  of  friendly  relations  with 
foreign  powers,  in  obtaining  information  abroad  in  the  interest 
of  extension  of  trade,  and  in  providing  for  international  co- 
operation concerning  matters  of  health,  education,  and  morality. 

106.   Community  of  Interest  in  the  Conservation  of  the  Individual 

Both  sexes  are  interested  in  the  protection  of  persons  and 
property  and  the  maintenance  of  order.  The  recent  transfer 
of  industry  from  the  home  to  the  factory  has  made  women 
largely  responsible  for  the  protection  of  the  home  from  fire  and 
burglary;  they  have  therefore  in  many  respects  a  more  intimate 
knowledge  of  and  interest  in  the  proper  performance  of  the 
duties  of  the  police  and  fire  force  than  men.  Our  modern  law 
of  property  assumes  the  need  of  joint  judgment  and  consent 
between  husband  and  wife:  laws  regulating  the  holding 
and  transfer  of  property  command  the  interest  and  atten- 
tion of  the  wife  as  well  as  the  husband.  The  common  law 
doctrine  that  the  husband  and  wife  are  one  and  that  the 
one  is  the  husband  has  been  disallowed  in  most  States.  So 
too,  in  matters  of  individual  property  rights,  woman's  property, 
though  she  be  a  wife,  in  most  states,  is  her  own;  while  she  has 
the  sole  use  of  her  earnings. 

Both  men  and  women  are  interested  in  the  promotion  and 
protection  of  the  interests  of  those  who  work ;  both  are  interested 
in  the  promotion  of  general  education,   literature,  art,   and 


1^6  Woman  Suffrage  [§  io6 

recreation;  in  the  promotion  and  protection  of  public  health; 
in  the  care  and  education  of  the  dependent,  defective,  and 
delinquent,  and  in  the  care  and  education  of  the  Indian 
and  other  wards  of  the  nation;  in  the  equaUzation  and  dis- 
tribution of  personal  risk  and  amortization.  With  respect 
to  all  these  both  the  sociaUzed  natural  instinct  and  social 
convention  have  been  such  as  to  make  the  judgment  of 
women  the  safer  guide.  Furthermore,  women  are  in  a  better 
position  to  know  whether  the  laws  on  these  subjects  are  being 
equitably  and  eflficiently  administered. 

No  other  activity  of  government  is  so  largely  under  the 
supervision  of  women  as  education.  A  large  majority  of  the 
teachers  of  elementary  schools  where  the  masses  receive  their 
complete  education  are  women.  The  mother  commonly  is 
more  closely  associated  with  the  education  of  her  children  than 
is  the  father;  she  has  a  knowledge  of  the  administration  of  the 
school  laws  and  a  better  basis  for  judgment  of  school  efficiency 
through  her  close  contact  with  the  development  of  the  child. 
She  may  find  time  for  school  \isitation  and  consultation  with 
teachers;  may  find  opportunity  to  accompany  her  children  to 
art  galleries  and  museums;  may  know  more  about  provisions 
made  for  pubHc  recreation.  These  facts  have  been  recognized 
in  most  states  by  the  extension  of  woman  suffrage  to  the  elec- 
tion of  school  officers  and  Ubrary  officials,  while  in  many  cases 
women  may  be  elected  or  appointed  to  these  positions.  In 
Colorado  the  office  of  State  Superintendent  of  Schools  has  been 
held  by  a  woman  since  the  time  when  women  were  given  equal 
suffrage.  In  1907  thirty-six  coimties  of  Colorado  elected  women 
county  superintendents.^  Even  in  Chicago,  a  city  not  "domi- 
nated "  by  woman  suffragists,  a  woman  has  held  the  position  of 
head  of  the  educational  system  for  several  years. 

Both  sexes  are  interested  in  the  care  and  support  of  the 

dependent,  defective,  and  delinquent.    In  former  times,  women 

heads  of  famiUes  have  been  responsible  for  the  rehef  of  the 

iinfortimate,  the  care  of  the  sick,  the  aged,  and  infirm,  and  the 

^  Sumner,  H.,  Equal  Snjffrage,  pp.  137-140,  195,  196. 


§  io6]  Community  of  Interest  157 

protection  and  care  of  the  defective.  These  functions  have 
now  been  to  a  large  extent  assumed  by  the  state,  but  this  transi- 
tion only  creates  a  new  responsibility  for  women,  since  it  is 
through  them  that  citizenship  must  obtain  the  best  knowledge 
of  the  administration  of  these  institutions.  Likewise  the  nature 
of  woman  fits  her  especially  for  the  administration  of  charity. 
Hence  organized  charity  without  women  workers  is  practically 
unknown,  while  one  leading  church  at  least,  through  its  Sisters 
of  Charity,  places  the  burden  of  responsibiHty  upon  women. 

Closely  related  to  education,  art,  and  recreation  and  the  care 
of  the  delinquent  are  the  activities  of  the  state  pertaining  to 
public  health.  In  these  questions  women  are  not  only  equally 
interested,  but  by  virtue  of  their  social  contact  and  responsi- 
bility are  better  qualified  for  the  exercise  of  social  judgment. 
They  are  very  directly  involved  in  the  sanitation  of  the  home, 
schools,  and  factories.  One  of  the  greatest  problems  of  our 
modern  congested  cities  relates  to  the  construction  of  tenement 
houses  in  which  a  majority  of  a  city's  population  is  reared.  The 
women  who  conduct  the  household  affairs  spend  practically 
all  their  time  under  conditions  where  bad  ventilation  and 
defective  plumbing  are  common,  and  where  the  admission  of 
sunlight  has  been  reduced  to  a  minimum.  The  salvation  of 
the  children  from  these  unfavorable  conditions,  so  far  as  this 
is  not  found  in  the  schoolroom  during  the  school  term  or  the 
streets  and  the  children's  playgrounds  during  the  summer, 
must  be  through  the  mother.  The  need  of  better  tenement- 
house  conditions,  therefore,  concerns  chiefly  the  women  and 
the  children  who  are  under  the  close  supervision  of  women. 

Women  are  deeply  concerned  in  proper  sanitary  and  fire 
regulations  in  factories,  so  as  to  protect  the  health  and  life  of 
women  and  of  children.  Statistics  show  that,  in  1910,  one  out 
of  every  five  women  was  a  wage  earner.  Women,  and  children 
under  the  care  of  women,  who  are  forced  through  economic 
necessity  to  work  in  factories  should  be  protected  by  the  state 
against  working  under  conditions  which  are  destructive  of 
health  and  life,  and  of  these  conditions,  their  effect  and  their 


ir8  Woman  Suffrage  [§107 

remedy,  the  women  wage  earners  themselves  are  naturally  the 
best  judges. 

107.  Community  of  Interest  in  Business  Affairs 
In  only  one  general  group  of  state  activities  do  the  training 
and  experience  of  man  give  him  a  greater  claim  to  confidence 
for  ability  to  think  about  community  needs  which  may  be 
served  by  the  government;  viz.,  those  activities  which  have 
to  do  with  conserving  and  promoting  the  business  or  economic 
interests  of  the  people.  Even  here  in  many  respects  woman 
is  not  without  a  just  basis  for  claim  to  equaUty  or  even  superior- 
ity of  ability  to  serve  the  community  in  the  capacity  of  elector. 
Suppose  the  subject  of  immediate  public  concern  is  the  efficiency 
of  the  administration  of  laws  enacted  to  protect  the  community 
against  short  weights  and  measures  in  making  purchases.  This 
primarily  affects  the  household  as  a  consumer,  as  was  shown  in 
1910  and  191 1  in  New  York  City  and  Philadelphia.  When 
the  facts  were  revealed,  defective  scales  and  baskets  with  false 
bottoms  used  by  retail  merchants  were  confiscated  by  thou- 
sands, new  ordinances  and  laws  were  enacted,  and  an  appeal 
was  made  to  housewives  to  help  in  the  detection  ot  fraud  and 
the  enforcement  of  the  law.  Women  equally  with  men  are 
interested  in  the  regulation  of  gas,  electricity,  and  water  supply, 
in  the  laws  and  the  conditions  surrounding  all  public  service 
enterprises,  and  have  a  better  opportunity  to  serve  the  com- 
munity than  have  men.  Women  are  equally  interested  in 
regulation  of  rates  of  transportation,  in  preventing  trade 
monopoUes,  etc.  It  is  only  in  the  more  strictly  private  enter- 
prises and  activities  and  in  the  promotion  of  the  economic 
interests  which  fall  under  the  unregulated  monopoly  of  private 
proprietorship,  in  the  management  of  which  the  pubHc,  as  a 
whole,  has  Uttle  interest,  except  in  so  far  as  this  relates  to 
conditions  affecting  general  business  prosperity,  that  the  man 
may  be  said  to  have  qualifications  Superior  to  those  of  woman. 
This,  however,  does  not  make  him  a  better  representative  of 
community  interest.    In  many  respects  it  unfits  him  for  public 


§§108,109]  Social  Convention  159 

service.  The  underlying  motive  in  private  business  is  selfish 
and  non-social.  A  very  large  part  of  man's  time  and  thought 
is  given  to  the  consideration  of  methods  whereby  he  may  gain 
an  individual  or  selfish  advantage  in  transactions  with  others. 
The  chief  consideration  of  each  party  to  a  business  transaction 
is  selfish.  If,  in  the  opinion  of  each,  considering  his  own  pur- 
pose, he  will  be  better  oS  by  exchanging  his  product  or  his 
labor  for  the  thing  offered,  then  an  exchange  is  made.  This 
unfortunately  has  been  too  frequently  the  attitude  of  men 
in  discharging  their  functions  as  electors.  Not  infrequently 
men  have  sought  to  influence  legislation  and  administration 
for  their  private  gain  by  alliances  with  political  bosses 
who  controlled  nominations,  elections,  and  appointments  to 
ofl&ce,  or  more  directly  by  the  employment  of  paid  lobbyists. 
Hence  the  recent  revolt  against  alliance  between  "crooked 
business  and  crooked  politics." 

108.  Social  Motive  Predominant  in  Woman 
With  woman  her  training  and  experience  is  more  largely 
social.  While  her  thought  is  largely  with  her  household,  it 
is  a  part  of  the  neighborhood.  She  cannot  think  of  the  welfare 
of  her  child,  her  husband,  her  brother,  her  home  without  taking 
many  others  into  consideration.  In  looking  out  for  the  health 
and  comfort  of  those  who  make  up  the  family  she  must  think 
of  the  garbage  man,  the  street  cleaner,  the  street  sprinkler, 
the  gas  company,  the  water  company,  who  serve  others.  Her 
thought  is  socialized.  The  information  upon  which  a  large 
part  of  social  opinion  about  what  the  government  should  do, 
what  it  is  doing,  and  what  its  results  are  is  the  information  of 
women.  The  social  motives  of  a  community  are  more  largely 
the  motives  of  women  than  of  men.  It  is  only  in  the  business 
districts  that  the  acts  and  the  opinions  of  men  are  the  dominant 
force. 

109.   Social  Convention  as  a  Limitation 

Facing  the  question  of  fitness  squarely,  therefore,  it  must 
be  conceded  that  from  the  viewpoint  of  citizen  intelligence  about 


i6o  Woman  Suffrage  [§109 

subjects  of  community  welfare,  from  the  viewpoint  either  of 
intellectual  or  social  fitness  to  perform  the  duties  and  discharge 
the  responsibility  of  electors,  women  as  a  class  are  to  be  pre- 
ferred —  i.e.,  if  in  a  highly  complex  community  like  our  own 
only  one  sex  is  to  perform  the  fimctions  of  electors,  the  women 
possess  higher  qualifications  than  do  the  men.  The  limitations 
which  are  to  be  reckoned  with  are  to  be  found  in  another 
field;  viz.,  in  social  convention.  Social  convention  has  said 
"speak  through  your  husband"  or  some  other  member  of 
the  community.  Deferring  to  this  convention,  many  women 
do  not  care  to  assume  responsibility  as  electors.  Being 
more  largely  moved  by  convention,  many  women  would 
not  accept  such  a  responsibility,  and  so  long  as  this  attitude 
of  mind  is  dominant,  it  may  be  fairly  questioned  whether 
the  duties  and  responsibilities  of  an  elector  would  be  better 
discharged  by  extending  the  qualifications  to  include  universal 
suffrage. 

Advocates  of  woman  suffrage,  however,  contend  that  even 
the  "social  convention"  objection  has  little  basis  in  fact  at  the 
present  time  and  point  to  the  experience  in  the  states  which 
have  granted  full  suffrage.  The  claim  is  that  when  the  duty  is 
placed  on  woman  she  has  accepted  it  and  discharged  it  with 
intelligence  and  honor  to  herself  and  profit  to  the  community. 
An  examination  of  the  registration  and  voting  registers  of  eight 
election  districts  in  Pueblo  City,  Colorado,  for  the  general 
election  of  1905  and  the  municipal  election  of  the  same  year 
revealed  the  following  facts:  ^ 

1.  In  the  best  precincts  the  women  on  the  registration  books 
constituted  on  an  average  slightly  less  than  46  per  cent,  while  the 
percentage  of  women  voters  in  the  total  vote  cast  was  approxi- 
mately 45  per  cent.  Almost  80  per  cent  of  the  women  who 
registered  voted,  whereas  the  men  polled  slightly  more  than  86 
per  cent  of  their  registration. 

2.  Similar  conditions  were  revealed  in  the  precincts  which 
represented  the  lowest  strata  of  society,  brothels,  and  the  lowest 

^  Lawrence  Lewis  in  the  Outlook,  January  27,  1906,  vol.  82,  pp.  167-178. 


§  log]  Social  Convention  i6i 

saloons.  In  these  precincts  about  37  per  cent  of  the  names 
upon  the  registration  books  represented  women,  and  the  women 
constituted  about  34  per  cent  of  the  actual  voters. 

3.  The  smallest  percentage  of  women  voters  was  found  in 
the  precincts  which  represent  the  middle  class,  such  as 
mechanics,  skilled  and  unskilled  laborers.  Here  the  percent- 
age of  women  on  the  registration  books  was  as  low  as  28  per 
cent,  and  their  actual  vote  at  the  election  29  per  cent  of  the 
total  vote. 

It  would  not,  however,  be  fair  to  conclude  that  all  the  women 
who  vote  in  the  best  districts  exercise  the  suffrage  because  they 
want  to.  Many  of  them  vote  as  a  sense  of  duty  to  offset  the 
vote  of  the  vicious  in  the  worst  districts.  Likewise  it  would 
not  be  fair  to  assume  that  the  women  of  the  lowest  strata  vote 
because  they  want  to.  Many  of  the  lewd  women  protest 
against  registration  and  only  register,  usually  under  assumed 
names,  because  the  police  under  the  direction  of  the  corrupt 
bosses  force  them  to  do  so. 

The  above  percentages  are  confirmed  by  the  investigations 
made  for  the  Collegiate  Equal  Suffrage  League.^  The  statistics 
cover  nine  selected  counties  and  the  city  of  Denver  for  the 
general  election  of  1906.  These  figures  show  that  for  the 
selected  counties,  41.5  per  cent  of  the  names  upon  the  registra- 
tion books  represent  women  and  that  37.3  per  cent  of  the  total 
vote  was  cast  by  women.  We  must,  however,  bear  in  mind 
that  the  females  constituted  47.4  per  cent  of  the  population, 
slightly  below  the  normal.  Even  a  better  showing  was  made 
in  the  city  of  Denver,  where  the  same  ratio  between  males  and 
females  prevails.  Here  43.5  per  cent  of  the  names  on  the 
registration  books  represented  women  and  40.7  per  cent  of  the 
total  votes  were  cast  by  women.  The  most  striking  results 
obtained  were  in  the  thirteenth  ward,  where  the  women  con- 
stitute 50.5  per  cent  of  the  total  population.  In  this  ward 
45.5  per  cent  of  the  registered  names  represented  women  and 
47.4  per  cent  of  the  total  vote  was  cast  by  women, 

^  Sumner,  Helen,  Equal  Sujfrage,  pp.  103,  107. 
12 


1 62  Woman  Suffrage  [§  no 

110.  Referendum  of  Women  on  Woman  Suffrage 
The  experience  of  the  West,  however,  is  not  to  be  taken  as 
an  absolute  guide  for  the  rest  of  the  country.  It  has  been  shown 
that  the  conventions  of  the  West  differ  from  those  of  the 
East.  Consequently  the  women  of  the  West  have  different 
characteristics  from  those  of  the  East.  In  the  East  there  are 
strong  anti-woman- suffrage  leagues  as  well  as  suffrage  leagues. 
In  none  of  the  Western  States  have  the  women  themselves 
ever  voted  upon  the  clear-cut  issue  as  to  whether  they  desired 
or  did  not  desire  the  suffrage.  That  there  are  a  great  many 
women  of  the  suffrage  states  who  now  vote,  but  who  would  vote 
against  woman  suffrage  if  it  were  referred  to  them,  there  can 
be  no  question.  Whatever  such  a  result  might  reveal  in  the 
Western  suffrage  states,  the  fact  remains  that  the  vast  majority 
of  the  women  of  the  Eastern  States  do  not  desire  suffrage.  In 
1895  the  women  of  Massachusetts  were  afforded  an  oppor- 
tunity to  express  an  opinion  by  ballot;  practically  all  who 
voted  were  favorable,  but  the  affirmative  vote  constituted 
less  than  four  per  cent  of  the  adult  women  of  Massachusetts.^ 
The  remaining  ninety-six  per  cent  stayed  away  from  the  polls 
and  thus  demonstrated  their  indifference. 

In  1910  Senator  Brackett  of  New  York  state  introduced  a 
bill  providing  for  a  referendum  of  the  suffrage  question  to  the 
women  themselves  in  the  fall  of  19 10  on  the  day  preceding  the 
regular  election.^  The  New  York  State  Association  opposed 
to  woman  suffrage  through  its  executive  committee  put  itself 
on  record  as  neither  favoring  nor  opposing  the  bill.  Although 
the  suffrage  associations  did  not  take  any  official  action,  most 
of  the  leaders  of  these  associations  declared  themselves  emphat- 
ically opposed  to  any  such  referendum.  Yet  this  appears  to 
be  a  sane  solution  of  the  question.  The  legislators  have  a 
right  to  know  whether  the  claim  that  a  vast  majority  of  women 
do  not  want  the  suffrage  is  correct,  and  if  correct,  they  should 

*  Outlook,  February  21,  1903,  vol.  73,  p.  418. 

*  Outlook,  February  19,  1910,  vol.  94,  pp.  375,  376. 


§  III]  England  163 

refuse  to  propose  suffrage  amendments  to  the  constitution  upon 
the  ground  that  a  right  not  wanted  and  not  used,  or  used  only 
as  a  sense  of  duty  to  offset  that  of  the  ignorant  enfranchised 
voters,  is  a  questionable  right. 


111.  The  History  of  the  Woman  Suffrage  Movement  in  England 

The  woman  suffrage  agitation  stretches  over  a  long  period 
of  time.  As  early  as  1509  one  Cornelius  Agrippa  went  to  the 
length  of  writing  a  book  of  thirty  chapters  to  prove  not  only 
the  equality  of  woman  to  man,  but  her  superiority.^  Again 
in  the  latter  part  of  the  eighteenth  century,  Mary  Wollstone- 
craft  published  her  book,  Vindication  of  the  Rights  of  Women, 
which  aroused  a  great  deal  of  adverse  criticism,  though  some 
persons  of  note  agreed  with  her.  Count  Segur  in  Women,  their 
Condition  and  Influence  on  Society,  argued  that  "humanity 
could  never  stop  for  the  best  results  until  both  sexes  were 
equally  studied  and  represented." 

The  question  came  again  to  the  front  in  England  in  the 
early  part  of  the  nineteenth  century  when  the  reform  of 
suffrage  and  representation  were  burning  questions.  In  1824 
James  Mill  contended  "that  all  individuals  whose  inter- 
ests were  included  in  those  of  other  individuals  may  be 
struck  off  the  electoral  roll.  ...  In  this  light  women  may  be 
regarded,  the  interests  of  almost  all  of  whom  is  involved  in 
that  of  their  fathers  and  husbands."  ^  This  view  brought 
out  a  spirited  protest  from  William  Thompson,  a  utilitarian 
philosopher.  From  1832  to  1848  many  arguments  appeared 
on  both  sides.  Bailie  originated  the  argument  that  disorder 
and  rough  behavior  at  elections  made  the  polls  no  place  for 
women. 

The  most  famous  advocate  of  woman's  cause  was  John 
Stuart  Mill.  In  an  announcement  made  before  his  marriage, 
he  said  that  he  did  not  intend  to  assert  any  of  the  rights  over 

*  Stanton,  E.  C,  History  of  Woman  Sufragc,  vol.  i,  ch.  i,  p.  37. 

'  Mill,  James,  article  on  Government,  Encyclopadia  Brilannica,  1824. 


164 


Woman  Suffrage 


[§  112 


his  wife  that  were  given  him  by  the  laws,  as  he  did  not  believe 
in  the  inequality  of  women;  and  in  1867,  when  the  second 
Reform  Bill  was  passed,  he  asked  that  "the  outward  visible 
sign  of  equality,  the  parUamentary  franchise,"  be  given  to 
women.^  Mrs.  Mill  also  voiced  her  protest  thus:  "Custom 
was  the  great  hindrance  to  women,  but  that  because  an  institu- 
tion was  customary  there  need  be  no  presumption  of  its  good- 
ness. Women  had  been  trained  without  a  duty  to  the  pubHc 
and  the  pubUc  suffered."  ^ 


112.  Early  Controversies  over  Woman  Suffrage  in  America 

As  has  been  sho\Mi  in  a  former  chapter,  there  seems  to 
have  been  no  women's  rights  party  in  the  colonies.  Neither 
was  the  sweeping  equaUty  doctrine  of  the  Declaration  of 
Independence  intended  to  apply  to  the  political  equality  of 
women  and  men.  However,  some  of  the  constitutions,  framed 
during  the  period  of  stress  and  storm,  were  loosely  drawn. 
For  instance,  the  New  Jersey  suffrage  provision  omitted  the 
word  "male"  before  citizen,  while  the  qualification  "worth 
50  pounds,"  by  omitting  the  word  "property,"  frequently 
permitted  a  person  without  property  the  right  to  vote  on  declar- 
ing that  he  considered  himself  "worth  50  pounds."  ^  When  the 
election  law  of  1790  was  framed,  Joseph  Cooper,  a  prominent 
member  of  the  Society  of  Friends  representing  West  Jersey, 
claimed  that  the  constitution  granted  women  the  right  to  vote. 
The  claim  was  recognized  and  the  words  "he  or  she"  were 
introduced  into  the  act.  It  was  again  recognized  in  practically 
the  same  form  in  the  election  act  of  1797,  apparently  without 
any  opposition,  which  warrants  the  conclusion  that  women 
did  not  take  advantage  of  the  right. 

In  this  year  (1797)  ''No  less  than  seventy-five  women  ap- 
peared at  the  polls  at  Elizabethtown,"  where  the  election  of 
members  to  the  legislature  was  contested  between  the  "Federal 

*  Mill,  John  Stuart,  Sufrage  for  Women. 

*  Westminster  Review,  1851. 

»  Luetscher,  G.  D.,  Early  Political  Machinery  in  the  United  States,  pp.  9-1 1 . 


§113]  Organized  Agitation  165 

Republicans"  and  the  "Federal  Aristocratic"  parties.  By 
1800  the  contest  between  the  two  parties  for  supremacy  was 
general  throughout  the  state  and  women  are  reported  to  have 
voted  generally.  But  the  incident  which  brought  the  question 
to  the  front  as  a  burning  issue  took  place  in  1806  in  a  referendum 
vote  in  Essex  County  over  the  location  of  the  county  seat.  In 
this  election  "it  was  soon  found  that  every  woman  in  the  county 
was  not  only  of  full  age,  but  was  also  worth  50  pounds  of  proc- 
lamation money,  clear  estate,  and  as  such  entitled  to  vote  if 
they  chose.  And  not  only  once,  but  as  often  as  by  change  of 
dress  or  complicity  of  inspectors,  they  might  be  able  to  repeat 
the  process."  ^  As  a  consequence  of  this  abuse  of  the  ambiguity 
an  attempt  was  made  to  amend  the  constitution.  In  1807 
the  legislature  assumed  the  right  to  define  the  meaning  of 
the  constitutional  provision  by  law,  and  provided  that  hence- 
forth only  male  citizens  worth  fifty  pounds  actual  property 
should  have  the  right  of  the  suffrage.  ^ 

113.  Beginning  of  Organized  Woman  Suffrage  Agitation 

This  action  of  the  New  Jersey  legislature  was  quietly  ac- 
quiesced in  by  the  women,  and  it  was  not  until  1840  that  an 
action  quite  foreign  to  woman  suffrage  brought  the  modern 
movement  into  being.  In  the  World's  Anti-Slavery  Conven- 
tion held  in  London  in  that  year,  the  men  attempted  to  silence 
the  women  by  refusing  to  work  with  them.^  The  American 
delegates  to  the  convention  on  their  return  began  an  agitation 
for  a  woman's  convention.  The  first  one  was  held  at  Seneca, 
N.Y.,  where  a  Declaration  of  Rights  was  issued.  A  clause 
asserting  political  equality  of  the  sexes  was  carried  by  a  small 
majority,  though  many  of  the  delegates  deprecated  this  action. 
Another  woman's  rights  convention  was  held  at  Worcester, 
Mass.,  in  1850,  which  demanded  the  suffrage,  better  educa- 

^  See  paper  read  by  William   A.  Whitehead,  Corresponding  Secretary  of 
the  N.  J.  Historical  Society,  at  a  meeting  of  the  Society,  January  21,  1858. 
*  Luetscher,  G.  D.,  Early  Political  Machinery  in  the  United  States,  p.  11. 
'  Stanton,  E.  C,  History  of  Woman  Snjjrage,  vol.  i,  p.  49. 


i66 


Woman  Suffrage 


[§  114 


tional  and  industrial  opportunities,  and  more  equal  laws.  The 
right  of  women  to  speak  in  public  and  organize  for  pubKc  work 
was  also  asserted.^  These  two  conventions  were  the  begin- 
ning of  the  organized  movement,  and  it  soon  bore  fruit  in  a 
partial  recognition  of  the  suffrage. 


114.  School  Suffrage 

The  first  acknowledgment  of  the  force  of  the  argument, 
especially  on  the  school  question,  for  the  participation  of  women 
in  suffrage,  was  in  the  West.  That  section  has  been  quickest 
to  respond  to  forces  directed  toward  institutional  change;  here 
the  web  of  custom  is  weakest;  here  popular  thought  is  least 
hampered  by  social  prejudice.  Western  society  has  not  become 
cast  in  a  groove  by  centuries  of  social  and  industrial  rela- 
tions. As  an  aggregate  of  individuals  facing  a  new  environ- 
ment, a  population  drawn  from  every  part  of  the  world,  the 
institutions  of  the  West  are  more  nearly  the  product  of  its 
own  creative  forethought  and  mental  adjustments. 

The  earHest  law  giving  school  suffrage  was  passed  in  1838, 
by  Kentucky,  essentially  a  Western  state.  Between  1859  and 
1869,  Kansas,  Michigan,  Nebraska,  and  Wyoming  allowed 
similar  rights.  In  the  following  decade  four  additional  Western 
States  —  Minnesota,  Colorado,  Oregon,  and  Utah  —  fell  into 
line,  as  well  as  New  Hampshire,  the  first  of  the  Original  Thir- 
teen. Between  1879  and  1889  Wisconsin,  North  and  South 
Dakota,  Mississippi,  Montana,  West  Virginia,  and  Arizona 
extended  the  suffrage  to  school  elections,  while  similar  pro- 
visions were  adopted  in  the  four  Eastern  States  of  Massachu- 
setts, New  York,  Vermont,  and  New  Jersey.  In  the  following 
decade  Oklahoma,  Washington,  Illinois,  Idaho,  Connecticut, 
and  Delaware  were  added  to  this  list. 

In  Kentucky  the  right  is  limited  to  widows  with  children 
of  school  age  and  widows  or  spinsters  having  a  ward  of  school 
age.     Similar   provisions   prevail   in   Michigan   and   Arizona. 

*  Stanton,  E.  C,  History  of  Woman  Suffrage,  vol.  i,  pp.  50-63. 


§§ii5,  ii6]  Full  Suffrage  167 

In  a  few  states,  such  as  Nebraska  and  Oregon,  all  taxpayers 
may  exercise  the  right  of  suffrage. 

In  various  states  the  school  suffrage  appHed  only  to  country 
districts.  This  was  so  in  Kentucky,  the  superintendent  of 
schools  excepted;  in  New  York  it  is  restricted  to  towns  and 
villages,  and  some  cities;  in  New  Jersey  to  villages  and  coun- 
ties. The  school  superintendent  is  also  excepted  in  Michigan, 
Nebraska,  and  Washington.  On  the  other  hand,  women  are 
allowed  to  hold  school  offices  as  well  as  vote  in  a  nvmiber  of 
states.  Likewise  women  are  allowed  to  vote  for  library  trus- 
tees in  Minnesota,  North  Dakota,  Illinois,  and  Iowa.  In  fact 
in  Iowa  they  are  allowed  to  hold  the  office  of  school  superin- 
tendent. 

115.  Woman  Siiffrage  and  Local  Finances 

Another  phase  of  the  school  suffrage  is  the  right  to  vote  upon 
issue  of  school  bonds  and  appropriations.  This,  however,  may 
be  treated  as  a  part  of  the  general  question  relating  to  the  right 
of  women  to  vote  upon  the  questions  of  local  taxation,  which  is 
usually  limited  to  women  taxpayers.  Women  may  vote  upon 
all  questions  submitted  to  taxpayers  in  Montana  and  Loui- 
siana; upon  the  sale  of  school  lands  and  liquor  in  Mississippi; 
upon  all  bond  issues  in  Kansas  and  Iowa;  upon  local  taxation 
and  issuing  of  franchises  in  Michigan,  and  upon  all  questions 
pertaining  to  the  raising  of  money  and  assessments  in  New 
York.  Kansas  has  gone  one  step  farther  and  has  granted 
women  the  right  to  vote  for  all  municipal  officers  as  well  as 
school  officers  and  bond  issues  in  all  cities  of  the  first,  second, 
and  third  class.^ 

116.  Full  Woman  Suffrage 

As  stated  above,  nine  states  have  already  granted  women 
the  same  suffrage  rights  as  exercised  by  men.  In  Wyoming 
there  has  been  universal  suffrage  since  i86q.  In  Utah 
women    were   given    the    right    to    vote    by    the    territorial 

'  This  summary  is  based  upon  an  abstract  of  the  laws  pertaining  to  woman 
suffrage  given  by  Hecker,  A  Short  History  of  Woman's  Rights,  pp.  166-233. 


i68 


Woman  Suffrage 


[§ii6 


legislature  in  1870  and  continued  to  exercise  this  right  very 
generally  until  the  Edmunds-Tucker  Act  of  1887  deprived  them 
of  this  privilege  through  act  of  Congress.  However,  when 
Utah  became  a  state  in  1896,  full  suffrage  for  women  was  incor- 
porated in  its  constitution.  In  1886  the  proposal  was  sub- 
mitted to  the  voters  of  Idaho  and  was  adopted.  In  Colorado 
the  convention  of  1876  left  the  question  of  bringing  forward  a 
measure  to  enfranchise  women  to  the  legislature,  subject  to 
the  approval  of  the  male  electors.^  An  act  granting  woman 
suffrage  was  passed  by  the  legislature  shortly  after  Colorado 
became  a  state,  but  was  rejected  by  a  vote  of  6612  to  14,053.^ 
The  proposal  was  again  submitted  in  1893  and  was  accepted.^ 
Woman  suffrage  extension  appeared  to  receive  a  setback  in 
the  two  decades  foUowing  its  adoption  in  Colorado.  Pro- 
visions for  the  enfranchisement  of  women  were  defeated  by  the 
voters  in  South  Dakota  in  1890  and  1897;  ^  in  Kansas  in  1894; 
in  CaUfornia  in  1896;  in  New  Jersey  in  1897;  in  New  Hamp- 
shire in  1903^;  in  Oregon  in  1906  and  1908.  In  1910  and  1911, 
however,  the  voters  of  Washington  and  California  approved 
amendments  providing  for  equal  suffrage,  while  in  191 2  the 
voters  of  six  states  expressed  themselves  on  similar  amend- 
ments, with  the  result  that  woman  suffrage  triumphed  in 
three  —  Kansas,  Oregon  and  Arizona;  and  suffered  defeat  in 
three  —  Ohio,  Wisconsin  and  Michigan. 

^  Const.,  1876,  art.  VII,  sec.  2. 

2  Mills,  Ann.  St.,  note  to  art.  VII,  sec.  2  of  the  constitution. 

'  Laws,  1893,  p.  25. 

<  Const.,  1889,  VII;  Laws  of  S.  D.,  1890,  p.  117. 

••  Outlook,  vol.  73,  pp.  418,  652. 


CHAPTER  XII 
EXCLUSION  OF  THE  UNFIT  FROM  THE  SUFFRAGE 

117.    References 

Bibliography:  A.  B.  HsLrt,  Manual  (1908),  §  204;  E.  McCIain,  Co«^/i- 
tutional  Law  (rev.  ed.,  1910),  §  197;  R.  C.  Ringwalt,  Briefs  on  Public  Ques- 
tions (1906),  Nos.  2-4;  Select  List  of  References  on  Compulsory  Voting  (Li- 
brary of  Congress,  1912). 

General  Observations  on  Limitations  of  the  Suffrage:  John  Stu- 
art Mill,  Representative  Government,  160-161;  W.  E.  Lecky,  Democracy 
and  Liberty  (1896),  I;  H.  S.  Maine,  Popular  Government  (1885);  Emile 
Laveleye,  Le  Gouvernement  dans  la  Democratie  (1892),  II,  51-52;  J.  K. 
Bluntschli,  Politik  (1876). 

Alien  Suffrage:  H.  A.  Chaney,  Alien  Suffrage  (Mich.  Pol.  Sci. 
Assoc,  Proceedings,  I,  No.  2). 

Educational  and  Property  Qualifications:  C.  F.  Bishop,  Elections 
in  American  Colonies  (1893),  part  i,  ch.  ii;  J.  Bryce,  American  Commonwealth 
(rev.  ed.,  1910),  ch.  xcvi;  J.  Hargreaves,  The  Educational  FraiKliise,  with 
Observations  on  its  Application  in  Italy  and  Belgium  (1S84);  G.  H.  Haynes, 
Educational  Qualifications  {Pol.  Sci.  Quart.,  XIII,  495-510);  J.  L.  W.  Wood- 
viUe,  Suffrage  Limitations  in  Louisiana  {Pol.  Sci.  Quart.,  XXI,  177-189); 
J.  Schouler,  Constitutional  Studies  (1898),  234,  235;  F.  G.  Caffey,  Suffrage 
Limitations  in  the  South,  1905  {Pol.  Sci.  Quart.,  XX,  No.  i);  F.  B.  Weeks, 
History  of  Negro  Suffrage  (Ibid.,  IX,  671-703);  A.  B.  Hart,  Realities  of 
Negro  Suffrage  (Am.  Pol.  Sci.  Assoc,  Proceedings,  II,  149-165);  J.  Rose, 
Negro  Stffrage  {Am.  Pol.  Sci.  Rev.,  I,  17-43). 

Moral  Qualifications:  F.  J.  Stimson,  Federal  and  State  Constitutions 
(1908),  §§  227-230,  250-256. 

Compulsory  Voting:  P.  Deetcr,  Essay  on  Compulsory  Voting  (1Q02); 
J.  W.  Garner,  Introduction  to  Political  Science  (1910),  500,  501;  A.  B.  Hart, 
Practical  Essays  on  American  Government  (1893),  20-47;  F.  W.  Hollis, 
Compidsory  Voting  (Am.  Acad,  of  Pol.  Sci.,  Annals,  1891);  G.  Bradford, 
Lessons  of  Popular  Government  (1899),  II,  187;  L.  Duguit,  Droit  Constitu- 
tionnel  (191 1),  91,  92;  J.  A.  Esmein,  Droit  Constitutionncl  (1903),  216  ff. 

118.   Positive  and  Negative  Qualifications 

In  the  previous  chapters  we  have  dealt  with  the  affirmative 
side  of  suffrage  qualifications.  There  remains  a  class  of  nega- 
tive provisions,  exclusions  outright,  because  of  a  desire  to 
increase  the  efficiency  and  fidelity  of  those  who  are  charged 


170  Exclusions  from  Suffrage     [§§  119, 120 

with  electoral  responsibility.  The  usual  disfranchisements  de- 
pend on:  (i)  non-citizenship,  (2)  ignorance,  (3)  improvidence, 
(4)  insanity,  (5)  immorality  and  criminality,  (6)  disregard  of 
electoral  responsibility. 

119.  Citizenship  as  a  Qualification 

One  of  the  marvels  of  our  political  history  has  been  the  rapid 
amalgamation  of  large  bodies  of  European  immigrants  with  our 
native  population.  Immigrants  were  needed  to  develop  our 
frontier  and  the  new  states  naturally  encouraged  immigration 
not  only  by  a  liberal  policy  pursued  in  relation  to  the  distribu- 
tion of  the  vast  tracts  of  uncultivated  land  which  could  be 
purchased  at  a  nominal  price,  but  by  the  ease  with  which  foreign 
immigrants  could  obtain  practically  full  political  rights,  and 
particularly  the  right  to  vote  for  elective  ofl&cers.  All  of  the 
states  created  out  of  the  Northwest  Territory  in  their  original 
constitutions  granted  the  right  of  suffrage  ^  to  native-born  male 
inhabitants  of  legal  age,  and  to  aliens  who  had  declared  their 
intention  to  become  citizens  a  brief  period  before  an  election. 
Many  of  the  states  west  of  the  Mississippi  adopted  equally 
lenient  provisions.  Missouri,^  Nebraska,^  North  ^  and  South 
Dakota,^  and  Oregon^  extended  the  right  to  vote  to  all  male 
inhabitants  who  had  declared  their  intention  to  become  citizens 
a  short  period  before  election.  Likewise  after  the  Civil  War 
a  number  of  the  Southern  States  made  a  bid  for  foreign 
immigrants  in  a  similar  manner.'' 

120.   Protest  against  Non-Citizen  Electors 

It  became  obvious  in  the  first  half  of  the  nineteenth  century 
that  the  average  foreign  immigrant  who  came  from  countries 

1  Ohio  Const.,  1802,  art.  IV,  sec.  i;  Ind.  Const.,  Am.,  1881,  art.  II,  sec.  2; 
111.  Const.,  1818,  art.  II,  sec.  27;  Mich.  Const.,  1850,  art.  VII,  sec.  i;  Wis. 
Const.,  1848,  art.  Ill,  sec.  i.  *  Const.,  1889,  art.  V. 

'  Const.,  187s,  art.  VIII,  sec.  2.  «  Const.,  1889,  art.  VII,  sec.  i. 

^  Const.,  1866,  art.  II,  sec.  2.  ^  Const.,  1859,  art.  II,  sec.  2. 

^  Ala.  Const.,  1868,  art.  VII,  sec.  2;  Ark.  Const.,  1874,  art.  Ill,  sec.  i; 
Fla.  Const.,  1887,  art.  VII,  sec.  i. 


§  i2o]  Non-Citizen  Electors  171 

subject  to  autocratic  power  would  find  difficulty  in  imbibing  the 
spirit  and  in  mastering  the  practical  workings  of  our  institu- 
tions within  so  short  a  period.  The  rise  of  the  American 
Party,  more  commonly  known  as  the  Know  Nothing  Party, 
in  the  fifties  of  the  last  century  was  a  protest  against  the  rapid 
introduction  of  the  foreigner  into  our  political  life.  This  senti- 
ment reached  its  extreme  in  Massachusetts  in  1859  when  the 
constitution  was  amended  to  the  effect  that  "no  person  .  .  . 
of  foreign  birth  shall  be  entitled  to  vote  or  shall  be  eligible  to 
office,  unless  he  shall  have  resided  within  the  jurisdiction  of  the 
United  States  for  two  years  subsequent  to  his  naturahzation."  ^ 
This  extreme  provision,  however,  was  repealed  in  1863.^  In 
the  course  of  time  several  states  gave  expression  to  a  similar 
sentiment  by  making  citizenship  a  qualification  for  voting. 
This  change  was  adopted  in  Vermont  in  1828,^  in  Illinois  in 
1848,"*  in  Ohio  in  1851,^  in  Montana  in  1894,^  and  in  Colorado 
in  1902^;  while  in  Wisconsin  this  same  qualification  became 
effective  in  1912.^ 

The  adoption  of  the  five-year  qualification,  the  minimum 
number  of  years  during  which  citizenship  can  be  acquired, 
does  not  of  itself  make  an  efficient  citizen  unless  he  possesses 
the  necessary  degree  of  intelligence  or  the  ability  to  acquire 
information  by  reading.  The  same  may  be  said  of  the  native- 
born  citizen,  for  it  is  a  conspicuous  fact  that  there  is  a  greater 
proportion  of  illiteracy  among  our  native  born  than  among 
naturahzed  citizens.  The  chief  handicap  of  many  foreigners 
lies  in  the  fact  that  they  are  not  able  to  read  the  English  lan- 
guage. In  addition,  the  ability  to  write  one's  name  consti- 
tutes another  important  factor.  In  another  chapter  mention 
is  made  of  the  value  of  the  signature  test  for  purposes  of  identi- 
fication of  electors  registering  or  voting. 

*  Mass.  Const.,  1859,  art.  XX. 

*  Mass.  Const.,  Amend.,  1863,  art.  XXVI. 
'  Vt.,  1828,  Amend.,  art.  I. 

*  III.,  Const.,  1848,  art.  VI. 

'  Ohio  Const.,  1851,  art.  V,  sec.  i.       ^  Colo.,  Am.,  1Q02,  art.  VII,  sec.  i. 

*  Mont.  Const.,  1889,  art.  IX,  sec.  2.      *  Wis.  Laws,  1907,  ch.  661. 


172  Exclusions  from -Suffrage  [§121 

121.  Reading  and  Writing  Test 
The  reading  and  writing  test  was  first  adopted  in  Massa- 
chusetts. In  1857  an  amendment  to  the  constitution  was 
passed  providing  that  "No  person  shall  have  the  right  to  vote 
or  to  be  eligible  to  ofl&ce  .  .  .  who  shall  not  be  able  to  read  the 
constitution  in  the  English  language  and  write  his  name." 
This  qualification  does  not  apply:  (i)  to  those  unable  to  qualify 
through  physical  disabihty;  (2)  to  those  who  had  otherwise  the 
right  to  vote  at  the  time  of  the  adoption  of  the  amendment; 
and  (3)  to  those  who  were  sixty  years  of  age  when  the  amend- 
ment went  into  effect.^  The  reading  qualification  without  the 
writing  test  was  first  adopted  in  Connecticut  in  1855,  when 
the  constitution  was  amended  as  follows :  "  Every  person  shall 
be  able  to  read  any  article  of  the  constitution,  or  any  section 
of  the  statutes  of  this  state,  before  being  admitted  as  an 
elector."  ^  In  1897,  this  provision  was  amended  so  as  to  re- 
strict the  suffrage  to  those  who  can  read  the  constitution  and 
statutes  "in  the  English  language."^  The  reading  test  was 
made  a  part  of  the  original  constitution  (1889)  *  of  the  state  of 
Washington  and  by  amendment  of  1896  ^  the  legislature  was  in- 
structed to  enact  by  law  the  manner  of  ascertaining  the  qualifi- 
cation of  voters  as  to  their  ability  to  read  and  speak  the  English 
language.  In  1892  Maine  adopted  the  reading  and  writing  quali- 
fications of  the  Massachusetts  constitution,^  and  two  years  later 
California  adopted  a  similar  provision.^  Jn  1903  New  Hamp- 
shire limited  the  suffrage  to  those  who  were  able  to  read  the  con- 
stitution in  the  English  language  and  write  their  names.^  The 
Colorado  constitution  of  1876  permitted  the  legislature  to  pre- 
scribe by  law  an  educational  qualification  for  electors  to  take 

1  Mass.  Const.,  Amend.,  1857,  art.  XX. 

2  Conn.,  Amend.,  1855,  Art.  XI. 

3  Conn.,  Amend.,  1897,  Art.  XXIX. 

*  Wash.  Const.,  1889,  art.  VI,  sec.  i. 
^  Wash.  Const.,  Amend.,  1896,  art.  VI,  sec.  i. 

*  Maine,  R.  S.,  1903,  pp.  44,  45. 
^  Cal.  Amend.,  1894,  sec.  i. 
8  N.  H.  Laws,  1903,  p.  154. 


§122]  Tests  in  the  South  173 

effect  not  earlier  than  i8go,  but  the  legislature  has  not  availed 
itself  of  this  power.^ 

122.  Educational  Tests  in  the  South 

Within  the  last  two  decades  six  of  the  Southern  States  have 
established  educational  qualification  for  suffrage.  In  four  of 
these,  however,  property  qualification  is  provided  for  as  an 
option  to  the  educational  quaUfication.  From  these  restric- 
tions all  soldiers  of  the  Union  or  Confederate  army  or  navy 
and  their  descendants,  or  those  who  were  voters  immediately 
after  the  Civil  War  and  their  descendants,^  and  who  were 
registered  at  a  time  ranging  from  six  months  to  eight  years  after 
the  adoption  of  these  provisions,^  are  exempted  for  life.  But 
those  who  are  registered  after  this  time  limit,  white  as  well  as 
black,  are  subject  to  these  restrictions.  The  constitutionaUty 
of  these  restrictions  has  been  contested  by  some  who  were 
thus  disfranchised  both  before  the  House  Committee  on  Con- 
tested Elections  and  before  the  federal  courts;  but  these  bodies 
have  thus  far  avoided  any  decision  on  the  question  of  conflict 
with  the  fifteenth  amendment. 

The  Mississippi  amendment  of  1890  restricted  the  suffrage 
to  all  those  who  can  read  or  understand  when  read  to  them 
any  clause  of  the  state  constitution.*  This  test  can  have  but 
one  serious  purpose;  viz.,  that  of  disqualifying  anyone  whom 
the  election  judges  may  think  undesirable. 

The  North  CaroUna  provision  of  1900  ^  limits  the  suffrage  to 
all  those  who  are  able  to  read  and  write;  while  the  Virginia 
amendment  of  1902  ^  limits  the  suffrage  after  1904  to  those 
who  register  and  are  able  to  make  application  for  registration 

*  Colo.  Const.,  1876,  art.  VII,  sec.  3. 

*  The  so-called  "grandfather"  clause  appears  in  the  amendments  of 
Louisiana  and  North  Carolina. 

'  This  provision  is  frequently  overlooked  by  those  who  unwittingly  convey 
the  impression  that  ignorant  and  improvident  whites  will  be  permanently 
exempted  from  these  restrictions. 

*  Miss.  Const.,  Amend.,  1890,  sec.  241. 

'  N.  C.  Const.,  Amend.,  1900,  sec.  2.  * 

*  Va.  Const.,  1902,  sec.  19. 


174  Exclusions  from  Suffrage  [§123 

in  their  own  handwriting.  All  those  who  are  able  to  read 
and  write  are  allowed  to  vote  in  South  Carolina/  Louisiana/ 
and  Alabama.^  These  three  states,  however,  prescribed  a 
property  qualification  which  constitutes  an  alternative  to  the 
educational  qualification. 

123.   Restrictions  against  Improvidence 

As  has  been  suggested,  ignorance  is  not  the  only  baneful 
influence  against  which  the  South  has  assumed  to  need  protec- 
tion in  its  electorate.  The  improvidence  of  the  negro  and  of 
some  of  the  whites  as  well  has  been  taken  into  account  in  the 
disfranchisement  of  the  shiftless  who  have  no  adequate  concern 
in  citizen  welfare.  The  property  qualifications  which  have 
already  been  referred  to  above  aim  to  exclude  this  questionable 
element  from  the  suffrage.  Mississippi,  North  Carolina,  and 
Virginia  require  some  evidence  of  providence  before  granting 
the  right  to  vote.  Only  such  persons  otherwise  qualified  who 
have  paid  a  poll  tax  of  two  dollars  in  Mississippi  ■*  and  North 
Carolina,^  and  those  who  have  paid  a  poll  tax  for  three  years 
preceding  1904  in  Virginia,^  are  given  the  suffrage.  The  remain- 
ing states  establish  a  property  qualification  as  an  alternative 
to  the  educational  test.  Thus,  after  1898,  the  applicants  for 
registration  in  South  Carolina  ^  who  are  unable  to  meet  the  edu- 
cational test  must  own  property  assessed  at  three  hundred  dol- 
lars or  more  and  must  have  paid  taxes  thereon.  Practically  the 
same  provision  appears  in  the  Louisiana  ^  amendment  of  1898 
and  in  the  Alabama  ^  amendment  of  1902.  Whatever  may  be 
said  of  the  virtue  of  these  qualifications,  they  have  operated  to 
place  a  large  number  of  persons  more  completely  in  the  hands 
of  the  political  boss. 

1  S.  C.  Const.,  1895,  art.  II,  sec.  4. 
'  La.  Const.,  art.  197,  sees.  3-5. 

*  Ala.  Const.,  sees.  180,  181. 

*  Miss.  Const.,  Amend.,  1890,  sec.  241;  R.  I.  Const.,  sees.  2,  3. 
^  N.  C.  Const.,  Amend.,  1900,  sec.  2. 

*  Va.  Const.,  1902,  sec.  19.  ^  La.  Const.,  sees.  180,  181. 
^  S.  C.  Const.,  1895,  art.  II,  sec.  4.      » Ala.  Const.,  sees.  180,  181. 


> 


§§124,125,126]  Immorality  175 

124.  Pauperism  as  a  Disqualification 
The  character  of  improvidence  which  has  disturbed  the 
South,  however,  has  not  led  to  practices  as  vicious  as  those 
which  have  obtained  in  the  North.  When  the  improvident 
person  is  reduced  to  the  condition  of  being  a  pauper,  or  even 
to  being  kept  at  a  poorhouse  at  public  expense,  and  when  the 
institution,  provided  by  the  pubUc  to  care  for  dependents,  is 
in  the  hands  of  a  partisan  faction,  the  inmates  become  the 
tools  of  those  who  seek  to  control  the  elected  officer  for  personal 
or  partisan  ends.  Pauperism  is  considered  sufficient  cause  for 
disfranchisement  in  thirteen  of  the  states;  nine  state  constitu- 
tions specifically  provide  that  no  pauper  can  vote;  three  pro- 
vide that  any  person  kept  in  a  poorhouse  or  asylum  shall  be 
denied  the  suffrage,  while  Texas  excludes  all  paupers  supported 
by  any  county.^ 

125.  Insanity  as  a  Disqualification 

Naturally  persons  who  are  not  in  possession  of  their  right 
minds  are  denied  the  right  to  exercise  the  suffrage.  Thirty- 
one  state  constitutions  explicitly  prescribe  that  no  insane  or 
idiot  person  can  vote,  while  eleven  other  states  extend  the 
disfranchisement  to  persons  under  guardianship  of  any  kind. 

126.   Immorality  and  Criminality  as  a  Disqualification 

Most  of  the  state  constitutions  expressly  provide  that  no 
person  convicted  of  an  infamous  crime  shall  be  allowed  to  vote, 
while  a  limited  number  of  constitutions  grant  the  legislature  the 
power  to  pass  laws  to  that  effect,  or  to  directly  disfranchise 
such  person  by  legislative  act.  The  following  crimes  are 
enumerated  in  the  constitutions  of  the  respective  states:  in- 
famous crimes,  high  crimes,  high  misdemeanors,  felony,  treason, 
larceny,  forgery,  murder,  burglary,  perjury,  and  assault  and 
battery.  Disqualification  also  follows  criminality  of  office- 
holders: such  as,  malfeasance,  embezzlement  of  the  public 
*  Stimson,  F.  J.,  Federal  and  State  Constitutions,  sec.  251,  p.  227. 


1 

176  Exclusions  from  Suffrage       [§§127,128      ^ 

funds,  and  defrauding  the  United  States  or  any  state  gov- 
ernment. Most  of  the  state  constitutions  also  disfranchise 
persons  for  offenses  committed  in  connection  with  elections. 
Among  these  offenses  are :  selling  or  offering  to  buy  votes,  bribery 
in  general,  misdemeanors  connected  with  the  right  of  suffrage, 
or  any  other  offences  connected  with  the  election  laws.  The 
constitutions  of  two  states  disqualify  persons  for  betting  on 
elections,  while  one  state  directs  the  legislature  to  deprive  of 
the  right  of  suffrage  absolutely  a  person  so  convicted.  Eight 
states  disqualify  persons  from  the  right  to  vote  who  are  guilty 
of  duelling  or  who  are  guilty  of  accepting  a  challenge  or  assist- 
ing in  a  duel. 

Immorality,  likewise,  is  a  cause  for  disfranchisement  in  a 
number  of  states.  The  foUo^vong  causes  appear  in  the  con- 
stitutions of  these  states:  adultery,  bigamy,  polygamy,  advis- 
ing polygamy,  miscegenation,  sodomy,  fornication,  incest,  and 
assault  to  rape.^ 

127.  Bearing  Anns  Against  the  Country  as  a  Disqualification 

A  number  of  the  constitutions  of  the  Northern  States  dis- 
franchise persons  who  have  borne  arms  volimtarily  against  the 
United  States,  persons  who  in  any  manner  voluntarily  aided 
or  abetted  the  Rebellion,  any  person  who  held  a  ci\dl  or  military 
office  under  the  Confederate  States,  those  who  are  dishonorably 
discharged  from  the  United  States  service,  and  any  person  who 
preaches  or  advises  that  the  laws  of  the  state  are  not  the  supreme 
law.2  On  the  other  hand,  as  has  already  been  pointed  out, 
service  in  the  Confederate  Army  is  in  some  of  the  Southern 
States  accepted  as  a  substitute  for  other  qualifications. 

128.  Compulsory  Voting 
The  question  has  been  frequently  discussed  whether  a  person 
whom  the  state  has  enfranchised  should  not  be  required  imder 

1  Stimson,  F.  J.,  Federal  and  State  Constitiitions,  sees.  252-256. 

2  Stimson,  F.  J.,  Federal  and  State  Constitutions,  sec.  252. 


§128]  Compulsory  Voting  177 

penalty  to  vote  unless  he  is  sick  or  absent.  Such  a  system  has 
been  in  operation  in  Belgium  for  a  number  of  years  and  in  Spain 
since  1908.  The  Spanish  law  provides,  with  only  slight  excep- 
tions, that  failure  to  vote  "is  punishable  by  publication  of  the 
name  of  the  delinquent  as  a  mark  of  censure,  by  a  two  per 
cent  increase  on  his  taxes,  by  the  loss  of  one  per  cent  of  his 
salary  if  he  is  in  the  employ  of  the  state,  and  in  case  of  repeti- 
tion of  the  offence,  by  the  loss  of  the  right  to  hold  pubUc  office 
in  the  future."  ^  The  supporters  of  compulsory  voting  uphold 
such  drastic  punishment  upon  the  ground  that  voting  is  a  public 
service,  a  civic  duty,  and  that  in  democratic  countries  failure 
to  exercise  this  function  is  against  public  policy  and  might 
result  in  misrepresentation  of  the  will  of  the  people  in  the  choice 
of  elective  officers. 

This  view,  though  entirely  consistent,  has  not  been  accepted 
by  many  poUtical  writers  and  thinkers.  In  opposition  to  com- 
pulsory voting,  it  is  held  that  voting  is  not  a  legal  duty,  but  a 
privilege,  or  that  it  is  a  moral  rather  than  a  legal  duty.  They 
maintain  that  compulsion  through  the  infliction  of  severe 
penalties  upon  failure  to  vote  would  reduce  the  suffrage  to  a 
mere  form  and  would  thus  lower  the  character  of  the  privilege. 
Some  writers  maintain  that  compulsory  voting  would  increase 
bribery,  for  it  would  reduce  the  number  of  votes  necessary  for 
success  to  the  certainty  of  an  arithmetical  problem,  and  the 
privilege  would  soon  be  estimated  by  its  market  value  .^  The 
bribery  argument,  however,  is  offset  by  another  consideration. 
It  is  a  well-known  fact  among  poHtical  workers  that  the  stay- 
at-home  vote  in  our  large  cities  affords  the  greatest  opportunity 
for  false  impersonation  and  repeating  at  the  polls.  Prosecu- 
tions of  election  frauds  have  revealed  the  fact  that  the  names 
of  persons  who  habitually  stay  away  from  the  polls  are  never- 
theless marked  upon  the  registry  books  as  having  voted.  The 
prevention  of  this  kind  of  election  fraud  constitutes  to-day  one 
of  the  imsolved  problems  in  the  administration  of  our  election 

'  Gamer,  J.  W.,  Introduction  to  Political  Science,  p.  501. 
'  Hart,  A.  B.,  Practical  Essays  on  American  Government,  ch.  ii. 
13 


178  Exclusions  from  Suffrage  [§129 

machinery.^    It  is  obvious  that  compulsory  voting  would  assist 
in  the  detection  of  such  frauds. 

129.  Laws  Against  Intimidation  of  Voters 

The  provisions  for  the  suffrage  have  not  stopped  with  a  mere 
granting  of  the  privilege  to  vote;  the  right  has  been  protected 
by  various  constitutional  and  statutory  provisions,  such  as  the 
constitutional  provisions  as  to  freedom  from  arrest  on  elec- 
tion days  while  attending,  going  to  or  coming  from  elections 
except  for  such  high  crimes  as  treason,  felony,  etc.,^  and  laws 
against  intimidation,  providing  for  secret  ballot  and  a  fair  and 
just  count.  In  fact  the  state  for  its  own  safety  has  accorded 
to  the  electorate  every  protection  in  order  that  there  might  be 
a  fair  and  free  exercise  of  the  function  of  voting.  These  protec- 
tive measures  have  been  in  many  instances  the  most  effective 
that  the  ingenuity  of  man  can  devise,  to  the  end  that  an  elec- 
tion may  be  an  expression  of  the  will  of  the  majority  of  the 
people  irrespective  of  religion,  property,  legal  or  social  status, 
"race,  color,  or  previous  condition  of  servitude." 

J  See  chapter  XXI. 

2  Constitutional  provisions  of  this  kind  are  found  in  the  following  constitu- 
tions: Ala.,  1875,  VIII,  4;  1901,  VIII,  191;  Ark.,  1874,  III,  4;  Ariz.,  Stat., 
1877,  Bill  of  Rights,  24;  Colo.,  1876,  VII,  5;  Cal.,  1880,  II,  2;  Del.,  1831,  IV, 
2;  Ga.,  1877,  II,  3;  111.,  1870,  VII,  3;  Ind.,  1851,  II,  12;  Iowa,  1857,  II,  2; 
Kans.,  1859,  V,  7;  Ky.,  1850,  II,  9;  1849,  iQo;  La.,  1879,  189;  1898,  204; 
Maine,  1820,  II,  2;  1864,  II,  2;  Mich.,  1850,  VII,  3,  1908,  III,  5;  Miss.,  1868, 
IV,  7;  Neb.,  187s,  VIII,  5;  Mo.,  .\m.,  1862;  1875,  VIII,  4;  Ore.,  1908,  III, 
S;  1877,  II,  12;  Ohio,  1851,  V,  3;  Pa.,  1874,  VIII,  5;  Tenn.,  1870,  IV,  3; 
Texas,  1876,  VI,  5;   1883,  VI,  5. 

Provisions  for  freedom  from  arrest  by  civil  process  are  found  in  the 
following  constitutions:  Conn.,  1818,  VI,  8;  Minn.,  1857,  VII,  5;  Nev., 
1864,  II,  4;  Va.,  1870,  III,  3;  W.  Va.,  1872,  IV,  3.  In  Michigan  (Const., 
1850),  Virginia  (Const.,  1870,  III,  5;  1902,  II,  29),  and  West  Virginia  (Const. 
1872,  III,  3),  voters  are  not  required  to  attend  court  on  election  day  as 
parties  or  witnesses;  in  Maine  (Const.,  1820,  II,  3;  1869,  II,  3),  111.  (Const., 
1870),  Iowa  (Const.,  1857),  Mich.  (Const.,  1850),  Neb.  (Const.,  1875),  Ore. 
(Const.,  1857,  II,  12),  Va.  (Const.,  1870,  III,  5),  W.  Va.  (Const.,  1872,  IV, 
3),  and  Cal.  (Am.,  1873,  1880,  II,  3)  the  elector  is  exempt  from  military 
duty  on  election  day  except  in  time  of  war. 


CHAPTER  XIII 
LOCAL   GOVERNMENT   BY   THE   ELECTORATE 

130.  References 

Bibliography:  G.  E.  Howard,  Local  Constitutional  History  (i88g),  I, 
475-498;  J.  A.  Fairlie,  Local  Government  (1906),  273-279;  A.  B.  Hart, 
Manual  (1908),  §§  107,  108,  209,  290;  A.  B.  Hart,  Actual  Government  (rev. 
ed.,  1908),  §  79. 

General  Principles  of  Local  Government:  T.  M.  Cooley,  Constitii- 
tiotial  Law  (1898),  ch.  xvii;  T.  M.  Cooley,  Constitutional  Limitations  (7th 
ed.,  1903),  ch.  viii;  J.  A.  Fairlie,  Local  Government  (1906),  chs.  i-iii;  F.  J. 
Goodnow,  Administrative  Law  (1905),  bk.  ii,  ch.  ii;  A.  B.  Hart,  National 
Ideals  (1907),  ch.  vii;  B.  A.  Hinsdale,  American  Government  (1895),  ch.  Iv; 
J.  K.  Hosmer,  Anglo-Saxon  Freedom  (1890),  ch.  xvii. 

Town  antj  County  Government:  E.  Charming,  Town  and  County 
Government  (Johns  Hopkins  University,  Studies,  H,  No.  10);  G.  E.  Howard, 
Local  Constitutional  History  (1889),  I,  62-79,  135-238,  408-470;  J.  A.  Fair- 
lie,  Local  Government  (1906),  chs.  iv-xvi;  J.  Bryce,  American  Cotnmonwealtk 
(rev.  ed.,  1910),  I,  chs.  xlviii,  xlix;  A.  de  Tocqueville,  Democracy  in  Amer- 
ica (1835-1840),  I,  ch.  v;   W.  Wilson,  The  State  (1900),  §§  1030-1040. 

Special  Studies  on  Local  Go\t;rnment  in  Johns  Hopkins  University, 
Studies:  New  England  Towtis,  Illinois,  Michigan,  Maryland,  and  South 
Carolina  (I);  Western  States  and  English  Colonies  (H);  Virginia  and  Mary- 
land (in);  New  York,  Rhode  Island,  and  Pennsylvania  (IV);  Connecti- 
cut (VII);  Wisconsin  (VIII);  South  and  Southwest  (XI);  South  Carohna 
(XIII).  Special  Studies  on  centralization  tendencies  in  local  government 
in  Columbia  University,  Studies:  J.  A.  Fairlie,  Centralization  of  Administra- 
tion in  N.  Y.  State  (IX);  S.  P.  Orth,  Centralization  of  Administration  in 
Ohio  (XVI);  W.  A.  Rawle,  Centralizing  Tendencies  in  Administration  in 
Indiana  (XVII);  R.  H.  WTiitten,  Public  Administration  in  Massachusetts 
(VIII);   H.  M.  Bowman,  The  Administration  in  Iowa  (XVIII). 

131.   Exercise  of  Govermnent  by  an  Electorate  never  Abandoned 

The  growth  of  our  institutions  during  the  colonial  period 
was  from  a  smaller  to  a  larger  political  whole.  The  primitive 
plantation  grew;  the  colony,  which  at  first  was  coterminous 
with  a  single  town  or  settlement,  came  to  include  several  others 
out  on  the  frontier;  from  the  primitive  settlement  the  common- 
wealth   was    evolved.     Finally,    the    several    commonwealths 


i8o  Government  by  Electors  [§  132 

federated  and  became  an  empire.  In  this  federation  that  pol- 
ity which  seemed  best  adapted  to  the  welfare  of  the  locally 
organized  community  was  retained  by  it;  that  more  general 
poUty  which  seemed  best  adapted  to  the  welfare  of  the  several 
component  commonwealths  was  retained  by  them;  while  for 
the  empire  a  still  broader  polity  was  established,  the  purpose 
of  which  was  to  conserve  the  welfare  of  the  federated  whole. 

In  all  this  complex  poUtical  system,  from  the  beginning, 
for  one  purpose  or  for  another,  may  be  found  what  is  some- 
times called  pure  democracy;  i.e.,  corporate  government  activ- 
ities carried  on  by  the  electorate.  This  has  been  availed  of  as 
follows:  (i)  in  a  popular  legislative  assembly  for  purposes  of 
local  government;  (2)  in  a  general  meeting  to  elect  officers 
and  to  determine  certain  questions  of  policy;  (3)  in  the 
submission  of  propositions  to  the  electorate  for  a  ballot  to  be 
taken  simultaneously  at  many  places  of  voting. 

132.  Popular  Legislative  Assemblies  in  Local  Government 

The  colonies  in  which  all  of  the  electorate  assembled  in 
a  corporate  capacity  at  one  place  to  transact  public  business 
were  Rhode  Island,  Plymouth,  New  Haven,  Massachusetts 
Bay,  and  Maryland;  but  as  shown  above,^  when  the  pop- 
ulation became  numerous  and  the  area  of  distribution  large 
this  form  of  central  governing  was  abandoned.  The  town- 
ship, the  parish,  the  tithing,  and  unincorporated  town,  the 
hundred,  the  manor,  the  borough,  the  county,  and,  in  the  very 
earliest  times,  the  central  government  of  the  colony  are  polit- 
ical divisions  in  which  the  electorate  assembled  at  some  common 
place  of  meeting  for  the  purpose  of  discussing  local  measures 
and  pohcies,  casting  their  ballots,  and  performing  whatever 
other  functions  of  government  might  be  properly  or  legally 
undertaken  by  them.  What  is  usually  called  the  "popular" 
assembly  is  an  electoral  assembly,  duly  incorporated,  or  by  con- 
sent exercising  governmental  functions  and  expressing  the 
sovereign  will  on  matters  coming  before  it  for  consideration. 
1  See  above,  §§  20,  24-28. 


§  133]  Parish,  Town  and  Village  181 

133.  County,  Parish,  Town  and  Village 

In  most  of  the  colonies  the  counties  grew  up  as  administra- 
tive and  judicial  divisions,  but  not  as  legislative  units,  and 
evidences  of  acts  of  government  therein  by  popular  assembly 
are  few.  In  Virginia,  however,  where  there  was  no  township 
and  very  little  municipal  organization,  electors  at  times  took 
an  active  part  in  the  county  courts.  These  county  courts  (fol- 
lowing the  English  example  of  the  close  corporation  or  the  select 
vestry)  till  1662  made  no  provision  for  electoral  activity  except 
in  election  of  burgesses;  but  in  that  year,  by  legislative  act, 
it  was  made  necessary  to  submit  the  laws  enacted  for  the  county 
to  the  electors  assembled  at  these  general  courts.^  In  1679, 
however,  this  privilege  was  withdrawn  and  provision  was 
made  for  parish  representatives  to  sit  with  the  justices  of  the 
peace  to  make  laws  for  the  county.^  Thereafter  Httle  or  no 
trace  of  the  use  of  the  electoral  assembly  is  found  in  the  Vir- 
ginia county  other  than  one  in  which  voters  came  together  to 
elect  ofi&cers. 

A  borough  is  a  corporation  and  presupposes  government  by  a 
board.  In  states  where  the  borough  existed  it  became  merged 
into  the  city  or  the  county;  if  acts  of  government  by  electoral 
assembly  were  ever  exercised  at  all  in  the  borough  states,  this 
form  was  abandoned  at  an  early  date. 

It  is  probable  that  in  Maryland  and  in  some  of  the  other 
proprietary  colonies  where  the  manor  was  the  local  political 
unit  local  laws  were  enacted  by  electoral  assemblies  in  the 
court-leet.^  This  system,  however,  was  discontinued  at  a  com- 
paratively early  date.  With  the  withdrawal  of  the  political 
rights  of  the  proprietary,  the  court-leet,  in  its  feudal  relation, 
came  to  an  end. 

The  history  of  the   hundred,  in   most  of  the  colonies,  is 

^  Hening,  vol.  ii,  pp.  171-72. 

^  Hening,  vol.  ii,  p.  441. 

'  Johnson,  J.,  Old  Maryland  Manors  (Johns  Hopkins  University,  Studies, 
I,  No.  7);  Wilhelm,  Lewis  W.,  Local  Institutions  of  Maryland,  pp.  28  et 
seq.  (Johns  Hopkins  University,  Studies,  HI,  Nos.  2-3). 


1 82  Government  by  Electors  [§  133 

little  more  than  the  history  of  a  name  ;  ^  except  in  Maryland 
it  had  practically  no  legislative  functions.  In  this  colony, 
by  the  act  of  1649,  the  assembly  of  freemen  electors  in 
each  himdred  is  recognized  "as  a  general  folk-moot"  with 
power  to  enact  and  enforce  local  ordinances  relating  to 
common  safety. 

"The  hundred  of  Maryland  was  a  living  organism,  in  charac- 
ter reminding  one  far  more  of  the  institution  in  the  days  of 
Eadger  than  in  those  of  the  Stuarts.  The  'court'  for  the 
election  of  burgesses  or  assessors,  the  assembly  for  the 
enactment  of  by-laws  and  even  the  meeting  to  frame 
petitions  to  the  assembly  or  indite  an  address  to  the  king, 
each  discharged  the  function  of  the  real  folk-moot,  thus  in 
part  supplying  the  place  of  a  town  meeting  for  the  purpose 
of  self-government."  ^  Except  where  the  hundred  has  assim- 
ilated the  fimctions  of  the  township,  as  in  Delaware,  it  is  no 
more. 

In  some  of  our  states  the  parish  still  remains  as  a  political 
organ  similar  to  the  township.^  At  the  time  of  the  coloniza- 
tion of  America  the  terms  "parish"  and  "township"  were 
almost  synonymous  in  their  institutional  significance  and 
included  both  civil  and  ecclesiastical  functions.  In  New  Eng- 
land where,  for  economic  reasons,  the  populations  were  more 
gregarious,  this  local  organism  received  the  name  of  "town," 
while  in  Virginia  and  the  South,  where  for  Uke  reason  the  pop- 
ulations were  more  scattered,  it  received  the  name  of  "par- 
ish." *  This  was  not  a  self-governing  unit  in  the  same  sense 
as  the  to^vnship  of  New  England.  The  industrial  condi- 
tions of  the  two  sections  were  different,  their  poUties  were 
different,  and  their  poUtical  adaptations  varied  accordingly. 

^  In  Delaware  the  hundred  was  the  name  given  to  the  political  sub- 
division similar  to  the  township  and  became  a  permanent  part  of  the  govern- 
ment.—  Howard,  George  E.,  Local  Constitutional  History,  vol.  i,  p.  282. 

2  Howard,  George  E.,  Local  Constitutional  History,  vol.  i,  p.  181;  Wil- 
helm,  Lewis  W.,  Local  Institutions  of  Maryland,  pp.  39  et  seq. 

3  The  parish  in  Louisiana  corresponds  to  the  county. 
*  Hening,  vol.  i,  pp.  125-26. 


§  133]  Parish,  Town  and  Village  183 

In  Virginia  the  parish  became  a  close  corporation,  while 
in  North  CaroUna,  South  Carolina,^  and  Maryland  -  it  was 
made  representative.  Electoral  assemblies  did  not  transact 
pubUc  business  in  this  form  of  local  government  except  as 
such  assemblies  might  be  held  to  vote  for  officers. 

The  most  important  poHtical  organisms  from  the  standpoint 
of  government  by  electoral  assembly  are  the  unincorporated 
town  and  the  township.  Both  had  a  common  origin  in  New 
England.  With  the  growth  of  the  colonies,  the  one  became 
adapted  to  the  conditions  of  urban  life  and  the  other  to  the 
interests  of  the  rural  community.  Typical  of  the  early  form 
are  Cape  Ann,  Salem,  Plymouth,  Duxbury,  and  many  of  the 
Connecticut  towns.  On  their  ci\'il  side  they  were  organized 
with  direct  reference  to  the  industrial  interests  of  the  general 
citizenship;  at  Plymouth  the  people  tilled  such  fields  and  occu- 
pied such  homesteads  as  were  allotted.  In  many  towns  were 
commons  which  at  first  were  used  for  common  pasture,  meadow, 
wood,  etc.  No  one  could  become  a  citizen  of  the  town  and  a 
participant  in  its  economy  without  formal  election  of  the  free- 
men. Many  of  them  had  a  military  organization,  but  this 
was  usually  a  district  organism  subordinate  to  the  civil  power. 
The  electorate  at  first  performed  the  functions  of  the  local 
government.  Later  regular  administrative  offices  were  estab- 
lished and  the  electorate  served  in  the  capacity  of  a  committee 
of  citizens  who  made  their  laws,  elected  officers,  and  determined 
the  most  important  questions  of  policy. 

In  New  York  the  village  community  took  root  and  grew.^ 
There  the  institutions  of  feudalism  had  been  transplanted  from 
the  old  world  by  the  Dutch  and  fostered  at  a  later  date  by  the 
EngUsh  under  the  regime  of  a  proprietor.  According  to  the 
rules  of  the  Dutch  East  India  Company,  all  persons  who,  within 

*  Ramage,  B.  James,  Local  Government  in  South  Carolina  (Johns  Hopkins 
University,  Studies,  V,  i). 

"■  See  Ingle,  Edward,  Parish  Institutions  in  Maryland  (Johns  Hopkins 
University,  Studies,  I,  No.  6). 

*  Howard,  George  E.,  Local  Constitutional  History,  pp.  104-106;  Elting, 
Irving,  Dutch  Village  Communities,  pp.  12,  etc. 


184  Government  by  Electors  [§133 

four  years  after  giving  notice  to  any  chamber  of  the  company, 
should  plant  a  colony  of  fifty  persons  over  fifteen  years  old 
should  be  acknowledged  as  patroons  and  be  ''permitted  at 
such  places  as  they  shall  settle  their  colony  to  extend  their 
hmits  four  miles  along  the  shore  —  that  is,  on  one  side  of  a  nav- 
igable river  or  two  miles  on  each  side  of  a  river  and  so  far  into 
the  country  as  the  situation  of  the  occupiers  will  permit." 
The  colonists  —  those  who  came  with  the  patroons  —  had  no 
rights  of  self-government  and  were  required  to  serve  the  patroon 
during  the  term  for  which  they  were  bound.  The  rights  granted 
to  the  patroons  were  nmnerous.  The  land  was  granted  in  per- 
petual inheritance,  together  with  the  "fruits,  right,  mines 
and  fountains  thereof;  a  monopoly  of  the  fishing,  fouling  and 
grinding,"  and  the  lower  judicial  jurisdictions.  Such  a  pol- 
ity was  not  suited  to  the  atmosphere  of  the  new  country.  It 
was  felt  to  be  oppressive  and  opposed  to  the  best  interests  of 
the  company  as  well  as  of  the  colonist. 

In  1640,  in  order  further  to  encourage  industry,  the  com- 
pany granted  a  new  charter,  modifying  the  privileges  of  the 
patroons,  offering  smaller  grants  of  lands  to  colonists,  and  also 
providing  that  in  case  the  settlements  of  master  and  free  col- 
onists should  increase  so  much  as  to  become  towns,  villages, 
and  cities  that  the  company  would  confer  municipal  privileges 
of  self-government  on  them.  A  large  munber  of  villages  sprang 
up,  and  "each  village  had  its  'boueries,'  or  house  lots,  its  com- 
mon fields,  or  pastures,  and  its  folk-moot  for  the  ordering  of 
its  domestic  affairs."  As  in  the  old  world  during  the  Middle 
Ages,  self-government  in  New  York  had  its  origin  in  the  free 
city.  After  the  assumption  of  government  by  the  Duke  of 
York,  charters,  patents,  and  privileges  to  cities,  manors,  and 
tOTVTis  were  confirmed. 

The  village  community  was  not  estabhshed  in  any  of  the 
colonies  having  a  predominant  feudal  poUty.  In  the  Southern 
States  the  economic  conditions  were  unfavorable  to  the  forma- 
tion of  towns  and  villages.  The  force  of  this  fact  is  well  illus- 
trated in  Virginia.    There  the  first  towns  —  Jamestown  and 


§  133]  Parish,  Town  and  Village  185 

Henricopolis  —  were  soon  left  to  decay,  the  inhabitants  having 
scattered  out  on  the  plantations  for  the  purpose  of  cultivating 
tobacco  for  export.  In  161 7  Jamestown  was  reduced  to  five  or 
six  buildings.  "When  Yeardley  arrived  in  Virginia  in  1619, 
not  only  was  Jamestown  in  a  state  of  great  decay  but  Henrico, 
also,  and  the  adjacent  settlements.  There  were  at  Henrico  a 
few  houses  all  of  which  had  gone  to  ruin.  .  .  .  The  condition 
of  the  dweUings  at  Coxendate  and  Arrahattock  resembled  that 
of  the  Houses  of  Henrico  and  Jamestown;  there  were  also  six 
houses  at  Charles  City  in  ruin."  Under  Yeardley 's  manage- 
ment the  population  of  Jamestown  by  1623  was  increased  to 
182.  This  year,  in  order  to  further  encourage  building  there, 
every  ship  arriving  in  Virginia  waters  was  forbidden  to  break 
cargo  before  reaching  Jamestown.  This  order  had  little  effect, 
however,  on  account  of  evasions.  In  1638  the  governor  and 
council  decided  that  there  was  only  one  way  of  encouraging 
town  building;  viz.,  by  confining  the  local  trading  to  certain 
points.  In  1642  Governor  Berkeley,  under  directions  from  the 
home  government,  undertook  a  vigorous  policy  of  town  build- 
ing. In  1661-62  the  general  assembly  passed  an  act  requir- 
ing all  ships  arri\dng  in  James  River  to  go  to  Jamestown  and 
the  planters  to  transport  their  goods  thence.  Yet  in  1675 
Jamestown  consisted  only  of  twelve  or  fourteen  families  (tavern 
keepers).  After  the  arrival  of  Culpeper  in  1680,  an  act  was 
passed  to  lay  out  towns  (cities)  in  the  various  counties, 
offering  lots  at  a  nominal  price,  and  some  twenty  sites  were 
selected.  This  was  followed  by  "An  Act  for  Ports"  in 
1 69 1.  But  with  all  of  these  acts  and  inducements  the  only 
place  in  Virginia,  prior  to  1700,  to  which  the  name  of  "town" 
could,  with  any  degree  of  appropriateness,  be  applied  was 
Jamestown,  and  even  this  never  rose  above  the  dignity  of  a 
village.^ 

*  Bruce,  P.  A.,  Economic  History  of  Virginia,  vol.  ii,  pp.  525,  527,  530- 
S38,  556. 


1 86  Government  by  Electors  [§134 


134.  Transformation  of  Town  Governments 

The  early  communities  had  usually  settled  in  open  spaces, 
on  grassy  areas  or  abandoned  Indian  cornfields.  But  with 
the  growing  necessity  of  the  community  to  clear  new  lands, 
with  the  desire  to  occupy  the  rich  outlying  territory,  with  the 
opening  of  roads  and  other  means  of  transit  and  trafl&c,  with 
the  diversity  of  industry  and  the  consequent  growth  of  com- 
merce and  manufacture,  individual  property  and  the  private 
initiative  came  to  be  of  greater  advantage.  As  a  proprietary 
industrial  organism  the  "town"  and  the  "village  community" 
broke  down;  but  politically  the  principle  of  organization  has 
been  retained.  In  the  rural  districts  it  has  taken  on  the  form 
of  the  township,  and  in  the  school  district  in  the  urban  districts 
it  existed  as  a  form  of  democratic  government  until  it  became 
necessary  to  abandon  the  simulation  of  a  popular  assembly 
for  the  transaction  of  pubhc  business.  The  history  of  town 
government  is  an  interesting  one,  interesting  not  only  because 
it  is  the  only  survival  in  which  popular  opinion  was  expressed 
in  an  electoral  assembly  as  distinguished  from  the  written  bal- 
lot, but  also  because  in  the  two  forms  m  which  we  now  see  it 
in  active  operation  are  to  be  found  the  principles  which  account 
both  for  the  growth  and  for  the  decadence  of  the  town  as  an 
institution. 

With  the  growth  of  the  incorporated  town  or  village  in  pop- 
ulation and  wealth  sooner  or  later  a  point  is  reached  where 
the  electorate  cannot  be  used  effectively  as  a  popular  assem- 
bly. Then  it  becomes  necessary  to  change  the  form  of  govern- 
ment to  such  an  extent  that  the  electoral  assembly  may  be 
supplanted  by  other  means  whereby  the  electorate  retains  the 
function  of  selection  of  legislator,  judge,  administrator  —  i.e., 
the  current  details  of  legislation,  administration,  and  adjudica- 
tion may  be  attended  to  by  those  who  can  regularly  perform 
certain  prescribed  functions  of  government  as  a  matter  of  busi- 
ness. We  have  no  better  example  of  this  than  the  city  of  Bos- 
ton.    "Boston   was   a   town,   governed   by  folkmoot,   almost 


§135]  Control  of  Towns  187 

from  its  foundation  until  1822,  more  than  one  hundred  and 
eighty  years.  In  1822,  when  the  inhabitants  numbered  forty 
thousand,  it  reluctantly  became  a  city,  giving  up  its  town 
meetings  because  they  had  grown  so  large  as  to  become  unman- 
ageable —  the  electors  choosing  a  mayor  and  common  coun- 
cil to  do  the  public  business,  for  the  citizens,  instead  of  the 
electors  doing  it  themselves."  ^ 

In  Massachusetts,  till  1822,  all  of  the  cities,  towns,  and 
villages  were  governed  in  part  by  electoral  assemblies,  —  i.e., 
certain  parts  of  the  business  of  the  town  were  passed  on  by 
the  electorate  assembled  as  a  town  meeting.  In  that  year  the 
legislature  was  authorized  to  charter  municipal  corporations 
on  application  of  a  majority  of  the  electors  of  any  town  having 
a  population  of  twelve  thousand  or  more.^  Government 
is  still  carried  on  by  town  meeting  in  most  of  the  New  England 
towns,  and  where  the  population  is  not  too  great  this  system 
has  been  proven  by  experience  to  be  most  efficient  and 
wholesome. 

135.  Relative  Advantages  of  Popular  Control  of  Towns 

Henry  Loomis  Nelson,  comparing  the  New  England  "towTi" 
system  with  the  "incorporated  village  system"  of  the  Middle, 
Southern,  and  Western  States  points  to  the  many  beneficial 
results  due  to  the  closer  attention  given  to  public  affairs  by  the 
people  of  the  town.  Among  the  contrasts  drawn  by  him  is 
the  following: 

"The  cities  of  Worcester,  Massachusetts,  and  Syracuse,  New 
York,  illustrate  generally  the  difference  between  New  England 
and  Middle  States  city  governments.  In  1880  the  two  cities 
were  nearly  equal  in  population.  They  are  both  manufac- 
turing cities,  situated  in  the  interior  and  surrounded  by  agri- 
cultural communities.  In  1880  Syracuse  had  92  miles  of  streets, 
17!  miles  of  which  were  paved.  The  annual  cost  of  maintain- 
ing these  highways  was  about  $35,000.     For  the  same  cost 

^  Hosmer,  J.  K.,  Samuel  Adams,  p.  i8. 
*  Mass.,  Amendment,  1822,  art.  II. 


1 88  Government  by  Electors  [§135 

Worcester  maintained  197  miles  of  streets,  all  of  which  were 
paved.  The  waterworks  of  Syracuse  were  owned  by  a  pri- 
vate corporation,  and  those  of  Worcester  by  the  city.  Syra- 
cuse had  no  parks,  unless  a  small  square  or  two  may  be  thus 
dignified;  Worcester  had  about  35  acres  of  parks.  The  drain- 
age system  of  Worcester  was  much  more  elaborate  and  per- 
fect than  that  of  Syracuse.  While  it  cost  Syracuse  from  $10,000 
to  $12,000  a  year  to  clean  92  miles  of  streets,  it  cost  Worcester 
only  $3300  to  clean  197  miles  of  streets.  The  police  force  of 
Worcester  was  larger  and  more  expensive  than  that  of  Syra- 
cuse. On  an  expenditure  of  $104,896  the  New  York  city 
maintained  18  schools,  in  which  were  taught  about  7000  pupils; 
the  Massachusetts  city  maintained  137  schools  and  instructed 
9000  children  for  $139,722,  The  fire  department  of  the  one 
consisted  of  four  steam-engines,  one  fire-extinguisher,  one 
hook-and-ladder  truck,  and  five  hose  carriages;  that  of 
the  other  had  five  steam-engines,  twelve  hose  carriages,  one 
extinguisher,  and  three  hook-and-ladder  trucks.  The  annual 
cost  of  the  first  was  $31,589;  of  the  second,  $38,840.  A 
similar  story  might  be  told  of  almost  any  two  cities  taken 
indiscriminately  from  New  England  and  from  any  other  section 
of  the  country.  .  .  . 

"In  New  England  the  body  of  voters  in  the  town  attend 
the  stated  March  meeting.  .  .  .  The  warrant  for  the  town 
meeting  notifies  the  townsmen  of  the  business  that  will  come 
before  them.  .  .  .  Each  voter  has  a  printed  copy  of  the  town 
report.  It  contains  a  minutely  itemized  account  of  the  expen- 
ditures of  the  past  year.  These  items  are  criticised  and  de- 
fended by  the  town.  The  debate  is  general.  Appropriations 
are  voted.  Usually  there  is  a  subject  which  breeds  excitement. 
It  may  relate  to  a  project  for  a  new  school-house,  to  the  open- 
ing of  a  new  street,  to  the  building  of  a  new  sewer.  The  work 
that  shall  be  done  for  the  coming  year  is  determined.  The 
manner  in  which  roads  and  bridges  shall  be  repaired  is  pre- 
scribed. All  the  business  transacted  in  villages  by  the  board 
of  trustees  is  done  by  the  townsmen  themselves.    Everyone 


§135]  Control  of  Towns  189 

knows  what  is  to  be  done.  Everyone  has  an  opportunity 
to  disclose  what  he  knows  of  the  malfeasances  of  town 
officers."  ^ 

The  rural  township's  institutional  history  has  been  one  of 
adaptation,  growth,  and  extension.    Under  primitive  conditions 
the  communal  proprietary  feature  was  adopted  as  a  means 
of  furthering  the  general  welfare.    Long  before  the  settlement 
of  America  a  change  had  come  about  in  political  and  economic 
conditions.    It  was  conceived  that  the  interests  of  the  vari- 
ous members  of  society  are  most  highly  promoted  by  private 
initiative  and  private  property.    Hence  communistic  property 
was  introduced  in  but  few  colonial  establishments.     But  local 
self-government  by  the  assembly  was  instituted  throughout 
New  England  as  it  was  thought  to  be  of  greatest  advantage  to 
the  people.    This  was  retained  in  the  rural  communities  because 
it  promoted  the  general  weal;  it  protected  the  interests  of  the 
members  of  the  local  political  organism  from  neglect  and  from 
the  insidious  designs  of  public  agents;   it  insured  the  greatest 
economy  in  public  administration;  it  furnished  a  ready  means 
whereby  the  people  could  at  once  protect  themselves  against 
a  wasting  of  their  resources  and  hold  their  representatives  to 
a  more  strict  account.     Mr.  Bryce,  comparing  the  various  forms 
of  local  government  in  the  United  States,  says  of  the  town 
meeting:   "Of  the  three  or  four  types  or  systems  of  local 
government  which  I  have  described  that  of  the  town  or  town- 
ship with  its  popular  primary  assembly  is  admittedly  the  best. 
It  is  the  cheapest  and  most  efficient ;  it  is  most  educative  to  the 
citizens  who  bear  a  part  in  it.    The  town  meeting  has  been  not 
only  the  source  but  the  school  of  democracy.    Again  the  towTi 
meeting  has  also  developed  an  intelligent,  active-minded,  alert, 
pubHc-spirited  people.     Participation  in  public  business  has 
induced  a  patriotic  interest." 

Jefiferson  had  long  before  given  testimony  to  the  vigor  and 
virtue  of  the  town  as  a  political  unit.     "How  powerfully,"  he 

^  Nelson,  Henry  Loomis,  Town  and  Village  Government  {Harper's  Maga- 
zine, June,  1891,  pp.  116-19). 


190  Government  by  Electors  [§135 

wrote,  "did  we  feel  the  energy  of  this  organization  in  the  case 
of  embargo.  I  felt  the  foundations  of  the  government  shaken 
under  my  feet  by  the  New  England  townships.  There  was 
not  an  individual  in  their  states  whose  body  was  not  thrown 
with  all  its  momentum  into  action;  and  though  the  whole  of 
the  other  states  were  known  to  be  in  favor  of  the  measure,  yet 
the  organization  of  this  little  selfish  minority  enabled  it  to  over- 
rule the  Union.  What  would  the  unwieldy  counties  of  the 
Middle,  the  South,  and  the  West  do?  Call  a  county  meeting; 
and  the  drunken  loungers  at  and  about  the  court-houses  would 
have  collected,  the  distances  being  too  great  for  the  good 
people  and  the  industrious  generally  to  attend.  The  charac- 
ter of  those  who  really  met  would  have  been  the  measure  of  the 
weight  they  would  have  had  in  the  scale  of  public  opinion. 
As  Cato  thus  concluded  every  speech  with  the  words,  'Car- 
thago delenda  est,'  so  do  I  every  opinion  with  the  injunction, 
'Divide  the  counties  into  wards.'"  ^ 

The  constitutional  advantage  of  the  town  system  has  fre- 
quently been  commented  on  by  writers.  As  pointed  out  by  Mr. 
Nelson,  those  state  governments  which  have  made  the  town- 
ship a  part  of  their  structure  have  been  most  satisfactory.  The 
six  New  England  States  are  the  only  ones  of  the  original  thir- 
teen that  have  had  only  one  constitution  each  since  the  estab- 
lishment of  the  federal  government.^  Their  constitutions  were 
short  and  confined  to  structural  provisions  and  guarantees  to 
the  general  social  state.  They  were  "more  fundamental  and 
less  particular"  than  those  based  on  the  county.  Local  inter- 
ests have  needed  no  other  guardians  than  the  electors  assembled 
in  the  town  meetings;  while  in  the  states  not  having  the  town 
meeting  with  all  its  primitive  vigor,  it  has  been  necessary  to 
load  their  constitutions  with  restrictions  on  the  legislature  and 
on  the  powers  of  local  ofl&cers.  So  satisfactory  were  two  of 
the  colonial  charters  which  included  the  town  system  that 

'  Jefferson's  Writings  (Monticello  ed.),  vol.  xiv,  p.  422. 
2  Mass.,  1780;  Conn.,  1818;  N.  H.,  1784;  Vt.,  1793;  R.  I.,  1842;  Maine, 
1820. 


i 


§135]  Control  of  Towns  191 

they  also  continued  to  serve  as  the  fundamental  law  many- 
years;  the  Connecticut  charter  continued  until  1818;  in  Rhode 
Island  the  charter  of  1663  remained  in  force  until  1842.  In 
contrast  the  states  of  the  Middle- West,  and  South  have  been 
constantly  changing  their  constitutions. 


CHAPTER  XIV 
FORMULATION  OF  ELECTORAL  ISSUES 

136.  References 

English  Methods:  L.  J.  Courtney:  The  Working  Constitution  of  England 
(1901),  164,  165;  H.  Jephson,  The  Platform;  Its  Rise  aitd  Progress  (1892); 
S.  Brooks,  English  Methods  compared  with  American  Methods  (Harper's 
Magazine,  CI,  329-344);  M.  Ostrogorski,  Democracy  and  Party  Organiza- 
tion (1902),  I,  part  Hi,  chs.  ii-iv;  Blanchard  Jerrold,  On  the  Manufacture  of 
Public  Opinion  {Nineteenth  Century,  June,  1883). 

Early  American  Methods :  E.  D.  Collins:  Committees  of  Correspondence 
in  the  Revolution  (Am.  Hist.  Assoc,  ^ww«a/  Reports,  1901, 1) ;  G.  D.  Luetscher, 
Early  Political  Machinery  in  the  U.  S.  (1903),  chs.  ii-iv;  M.  Ostrogorski, 
Democracy  and  Party  Organization  (1902),  II,  ch.  i;  F.  W.  DaUinger,  Nom- 
ination for  Elective  Office  (1897),  ch.  i. 

The  Platform:  Under  the  Convention  System  —  J.  Bryce,  American 
Commonwealth  (rev.  ed.,  1910),  II,  chs.  Ixix,  Ixxxiii;  E.  Stanwood,  A  History 
of  the  Presidency  (rev.  ed.,  191 2);  T.  H.  McKee,  National  Conventions  and 
Platforms  (1901);  J.  Macy,  Party  Organization  and  Machinery  (1904),  65-86, 
91-101;  M.  Ostrogorski,  Democracy  and  Party  Organization  (1902),  II,  part 
V,  chs.  ii  and  iii.  See  also  almanacs,  campaign  handbooks,  etc.  Under  the 
Direct  Nomination  System — E.  C.  Meyer,  Nominating  Systems  (1902), 
part  iii,  ch.  ii;   C.  E.  Merriam,  Primary  Elections  (1908),  79-83,  127. 

Campaigns  and  Campaign  Literature:  J.  Bryce,  American  Common- 
wealth (rev.  ed.,  1910),  II,  chs.  Ixvi,  Ixxi,  Ixxii;  M.  Ostrogorski,  Democracy 
and  Party  Organization  (1902),  II,  part  v,  chs.  iv,  v;  A.  B.  Hart,  Actual 
Government  (3d  ed.,  1908),  §  49;  C.  A.  Beard,  Readings  in  American  Govern- 
ment and  Politics  (1910),  ch.  vi;  J.  Macy,  Party  Organization  and  Machinery 
(1904);  NUes'  Weekly  Register,  XXVI,  XL VI;  Mrs.  Talcott  WiUiams, 
Story  of  a  Woman's  Municipal  Campaign  (Am.  Acad,  of  Pol.  Sci.,  Annals 
July,  1895);   see  also  Congressional  documents  and  campaign  handbooks. 

137.  Individual  Statements  of  Issues 

In  so  far  as  provision  was  not  made  for  discussion  of  pub- 
lic business  at  town  meetings,  there  was  at  first  practically 
no  governmental  agency  for  the  discussion  of  issues.  With 
an  electorate  which  is  widely  scattered,  quite  an  elaborate 
procedure  becomes  necessary  to  obtain  an  expression  of  views. 
A  necessary  first  step  is  the  formation  of  issues  on  which  a 


§137]  Individual  Statements  193 

vote  can  be  taken.  The  means  employed  for  doing  this  have 
been,  until  comparatively  recent  date,  wholly  voluntary  and 
extra-legal.^ 

The  form  of  many  of  the  extra-legal  political  agencies  in 
this  coimtry  was  borrowed  from  England,  particularly  in  the 
Southern  States,  where  there  was  a  tradition  that  officeholders 
should  belong  to  a  leisure  class.  In  the  South  the  'English 
system  of  self -nomination  for  office  and  of  electioneering  "in 
propria  persona"  was  common.  The  landed  proprietor  with 
slaves  and  dependents  to  do  his  work,  accustomed  to  defer- 
ential regard  for  his  opinion,  was  the  natural  leader  in  matters 
of  pubhc  concern;  besides  he  had  the  time  and  the  wealth  to 
enable  him  to  conduct  a  personal  campaign.  Under  such  a 
system  the  local  issues,  when  there  were  any,,  as  distinct  from 
personal  fitness  for  office,  were  set  forth  by  the  candidate 
himself.  This  practice  also  obtained  in  state  politics.  Both 
Madison  and  Francis  Corbin,  candidates  for  Congress  from 
congressional  districts  in  Virginia  in  the  first  national  election, 
announced  their  candidacy  by  letters  to  their  constituents, 
which  were  published  in  the  papers.  These  individual  meth- 
ods continued  in  the  Southern  States,  and  to  some  extent  in 
the  Middle  States,  until  definite  party  organizations  took 
upon  themselves  the  function  of  making  nominations  and  of 
formulating  the  issues. 

The  obsolescence  of  the  old  American  practice  seems  to  result 
from  the  diminishing  importance  and  influence  of  a  landed, 
leisure  class.  In  England  the  candidate  still  formulates  the 
issues,  as  appears  from  a  recent  description:  "Every  candidate 
for  the  election  (Parliamentary)  issues  an  address  to  his  own 
constituents  containing,  with  more  or  less  amplification,  the 
grounds  upon  which  he  makes  his  appeal;  and  the  addresses  of 
the  leaders  who  sit  in  the  House  of  Commons  supply  the  main 
subject  of  contention  with  some  indication  of  the  order  of  im- 

*  A  large  portion  of  the  material  of  this  chapter,  in  so  far  as  it  deals  with 
the  origin  of  the  extra-legal  machinery,  has  been  obtained  through  Luetscher, 
G.  D.,  Early  Political  Machinery  of  the  United  States: 
14 


194  Formulation  of  Issues  [§  138 

portance.  These  addresses  are  issued  the  moment  the  time  for 
the  general  election  is  determined,  and  the  addresses  of  their 
followers  reproduce  the  leading  features,  with  the  addition  of 
declaration  of  loyalty  to  the  party  chief.  The  formulation  of 
party  programmes  and  party  conventions  are  quite  new  .  .  . 
and  are  not  of  the  transcendent  importance  of  the  platforms 
formulated  in  the  United  States."  ^ 

138.     Colonial  Committees  of  Correspondence 

This  individualistic  system  could  not  generally  prevail  in 
the  United  States,  and  where  used  could  not  survive  long;  for 
it  does  not  furnish  a  basis  for  collective  activity,  the  need  for 
which  will  be  set  forth  in  connection  with  the  evolution  of 
"party  systems."  Even  before  permanent  party  organizations 
assumed  control  over  nominations  and  the  formulation  of  is- 
sues, the  Americans  worked  out  interesting  methods  in  deter- 
mining what  issues  should  be  made  the  subject  of  political 
discussion.  The  most  striking  illustration  of  such  collective 
action  is  found  in  the  Committees  of  Correspondence  of  the 
Revolutionary  period. 

Under  the  influence  of  Samuel  Adams  the  Town  of  Boston 
elected  a  committee  of  correspondence  on  November  2,  1772. 
This  committee  held  regular  meetings,  consulted  with  other 
similar  bodies  in  the  vicinity,  encouraged  the  appointment  of 
similar  committees  in  the  surrounding  towns,  kept  up  a  corre- 
spondence with  them,  prepared  political  letters,  circulars,  pam- 
phlets, and  appeals  for  the  press;  circulated  their  propaganda  in 
newspapers  and  in  "broadsides,"  formulated  political  meas- 
ures, heated  the  popular  temper  to  the  boiling  point  of  revo- 
lution, and  then  drew  from  it  the  authority  to  act.-  Within 
less  than  three  months,  eighty  towns  of  Massachusettts  had 
committees,  representing  the  people,  organized  in  the  towTis. 

^  Courtney,  L.  J.,  The  Working  Constitution  of  the  United  Kingdom,  pp. 
164-65. 

2  Collins,  E.  D.,  Committees  of  Correspondence  of  the  American  Revolu- 
tion''' (Am.  Hist.  Assoc,  Reports,  1901,  vol.  i,  p.  247). 


l!       §138]        Committees  of  Correspondence  195 


h 


The  correspondence  method  reached  its  highest  degree  of 
perfection  in  the  colony  of  New  Jersey,  where  three  types  of 
committees  were  organized.  Each  township  elected  a  com- 
mittee to  correspond  with  other  township  committees  of  the 
same  county.  The  members  of  the  township  committees  met 
and  selected  from  their  number  a  county  committee  to  corre- 
spond with  other  county  committees  of  the  colony.  The 
county  committees  in  turn  met  to  choose  a  provincial  com- 
mittee for  the  purpose  of  corresponding  with  the  provincial 
committees  of  other  colonies. 

The  plan  of  similar  intercolonial  correspondence,  which 
played  such  an  important  part  in  Revolutionary  politics,  orig- 
inated in  Virginia  on  March  12,  1773.  On  this  day  the  Vir- 
ginia Assembly  appointed  a  committee  "to  obtain  the  most 
early  and  authentic  intelligence  of  all  such  acts  and  resolutions 
of  the  British  Parliament,  or  proceedings  of  administration  as 
may  relate  to  the  British  Colonies  in  America;  and  to  keep  up 
and  maintain  a  correspondence  and  communication  with  our 
sister  colonies  respecting  those  important  considerations."  ^ 
Within  a  year  twelve  colonial  assemblies  responded  to  the 
Virginia  resolutions  by  appointing  similar  committees  of  corre- 
spondence.^ These  committees  represented  the  people  organ- 
ized in  colonial  assemblies.  The  condition  giving  rise  to  them 
was  a  foreign  and  hostile  administration,  irresponsive  to  pop- 
ular demand.  Their  value  cannot  be  overestimated.  They 
constituted  the  only  agency  for  collecting  the  sentiments  of 
the  different  sections,  for  formulating  these  sentiments  into  a 
definite  campaign  issue,  and  for  impressing  upon  the  different 
sections  the  need  of  united  action.  In  the  local  colonial  and 
intercolonial  committees  of  correspondence  is  found  the  first 
American  poUtical  party,  and  the  Declaration  of  Independence 
was  the  first  definitely  formulated  party  platform.     In  the  sev- 

'  Cahfidar  of  Virginia  Stale  Papers,  VIII,  p.  i;  Am.  Hist.  Assoc,  Reports, 
1901,  p.  250. 

^  Calendar  of  Virginia  State  Papers,  VIII,  p.  i;  Am.  Hist.  Assoc,  Reports, 
1901,  p.  252. 


196  Formulation  of  Issues  [§139 

eral  colonies  they,  in  a  quasi  constituent  capacity,  carried  on 
the  provincial  government,  elected  delegates  to  the  Continental 
Congress,  and  issued  the  call  for  conventions  to  formulate  a  state 
constitution.  As  the  crisis  which  called  them  into  existence 
came  to  an  end,  new  committeemen  were  no  longer  elected. 

Their  value  and  efl5ciency  as  an  extra-legal  agency  having 
been  demonstrated,  whenever  a  need  arose  they  were  revived. 
Thus  the  committees  of  correspondence  reappeared  as  the 
most  important  feature  of  the  Democratic  Societies  formed  in 
1793  and  1794  for  the  purpose  of  opposing  the  administration 
policy  of  neutrality  toward  France  and  England.^  Upon 
these  committees  fell  the  burden  of  formulating  issues  and 
communicating  these  formulations  for  popular  consideration. 
Where  the  town  did  not  exist  as  an  organized  social  and  polit- 
ical imit,  societies  were  organized  so  that  the  leading  members 
of  the  local  societies  were  always  placed  upon  the  committees.^ 
It  was  one  of  the  distinct  aims  of  the  Pennsylvania  societies  to 
enter  the  congressional  and  state  elections  of  1794  and  to  aid 
in  the  nomination  and  election  of  candidates  of  the  Jeffersonian 
Republican  Party .^  Their  plans  were  upset  just  before  the 
elections,  when  the  national  administration  denounced  the 
societies  as  the  fomentors  of  the  Whiskey  Insurrection. 

This  odium  placed  upon  them  by  Washington  resulted  in 
their  immediate  disbanding,  and  the  proposed  scheme  of  united 
action  for  the  selection  of  candidates  and  the  formulation  of 
issues  came  to  a  sudden  end. 

139.   Caucuses  of  Congress  and  Legislature 
A  generally  accepted  method  for  the  formulation  of  party 
issues  through  collective  activity  was  not  developed  for  a  long 

1  Luetscher,  G.  D.,  Early  Political  Machinery  in  the  United  States,  p.  41. 

2  The  Philadelphia  Committee  was  composed  of  Alexander  J.  Dallas, 
Secretary  of  the  State  of  Pennsylvania;  Benjamin  F.  Bache,  Editor  of  the 
American  Daily  Advertiser;  and  Peter  S.  Deponceau,  one  of  the  leading  citi- 
zens.    {Ibid.,  p.  55.) 

3  Minutes  of  the  Philadelphia  Democratic  Society,  June  12,  1794,  now 
in  the  possession  of  the  Pennsylvania  Historical  Society. 


I 


§  i4o]  Caucuses  1 97 

time.  One  of  the  evolutionary  forms  was  the  congressional  or 
legislative  caucus  which  limited  itself  to  the  selection  of  candi- 
dates and  never  assumed  to  formulate  and  adopt  a  party  plat- 
form. The  press  was  practically  the  only  active,  general  agency 
through  which  party  policies  could  be  crystalHzed.  Most  of 
the  newspapers  were  intensely  partisan  and  devoted  much 
space  to  editorials,  anonymous  communications,  and  letters 
from  public  men,  in  defence  of  the  principles  of  one  or  the 
other  of  the  parties.  They  were  more  largely  a  political  factor 
—  an  organ  devoted  to  general  education  than  to  local  news. 
At  the  time  of  the  origin  of  our  national  parties,  the  newly 
formed  Jeffersonian  Republican  Party  complained  bitterly  of 
the  advantages  enjoyed  by  their  opponents,  due  to  the  fact 
that  at  first  a  majority  of  the  papers  were  controlled  by  the 
Federalists. 

140.   Convention  Platforms 

Even  the  national  and  state  nominating  conventions  which 
superseded  the  caucus,  at  first  refrained  from  formulating  party 
platforms.  The  first  national  party  platform,  known  as  such, 
was  issued  by  a  meeting  of  young  men  in  1832,  who  were  called 
together  upon  the  recommendation  of  the  National  Republi- 
can Convention  which,  the  year  previous,^  nominated  Henry 
Clay  for  the  Presidency.  The  second  national  platform  was 
issued  by  the  Democratic  Party  in  1840,  and  this  was  the  first 
instance  that  the  nominating  convention  itself  assumed  that 
function.^  This  method  was  adopted  by  all  parties  in  1844, 
and  has  continued  since  that  time  to  be  the  recognized  method 
in  all  cases  where  the  convention  system  has  been  used  and 
retained  for  nominating  purposes. 

The  convention  as  a  whole,  however,  has  little  to  do  with 
the  discussion  and  sifting  of  political  doctrines.  It  is  a  body 
which  is  "fitted  neither  by  its  numbers  nor  its  composition  to 
perform  such  a  function."^    The  platform  is  invariably  pre- 

^  McKee,  T.  H.,  National  Conventions  and  Platforms,  pp.  28-30. 
^  McKee,  T.  H.,  National  Conventions  and  Platforms,  pp.  41-42. 
^  Bryce,  James,  American  Commonwealth,  vol.  ii,  p.  t,t,. 


198  Formulation  of  Issues  [§141 

pared  by  a  small  committee  and  is  usually  adopted  by  the  con- 
vention with  little  change.  Generally  the  party  platforms 
constitute  "a  mixture  of  denunciation,  declamation,  and  con- 
ciliation." However,  in  times  of  a  great  crisis,  as  in  the  days 
immediately  preceding  the  Civil  War,  parties  have  formulated 
through  the  platform  very  vital  doctrines,  which  have  influenced 
the  campaign  and  the  ensuing  administration.  Again,  the 
National  Conventions  of  1896  defined  doctrines  with  respect 
to  financial  questions  which  realigned  the  electorate  and,  with 
respect  to  certain  broad,  social,  and  civic  interests,  changed 
the  whole  tenor  of  political  thought. 

141.  Discussion  of  Issues  by  Candidates 
In  our  early  national  history  —  before  party  organization  and 
the  electorate,  by  division  on  questions  of  national  policies,  be- 
came crystallized  in  nation,  state,  and  locality  —  the  campaign 
was  usually  conducted  by  the  candidate  himself  and  his  close 
friends.  This  was  especially  true  in  the  Southern  States  where 
the  English  practice  of  self-nomination  was  followed.  Indi- 
viduaHsm  in  nominations  meant  naturally  indi\-iduaUsm  in 
the  campaign.  The  candidate  acquainted  the  electorate  ^ith 
his  \dews  upon  political  questions  either  through  the  press  or 
by  appearing  before  them  in  person.  All  of  these  methods 
are  clearly  expressed  in  the  campaign  of  Francis  Corbin  of 
Virginia,  a  candidate  for  Congress  in  1789,  who  announced  his 
candidacy  and  his  views  by  public  letter.  It  is  significant  of 
the  un-American  character  of  the  self-conducted  campaign 
that  he  concluded  the  letter  with  the  following  apolog>': 

"I  had  fully  intended  to  have  paid  my  personal  respects 
to  you  individually  as  well  as  collectively.  But  my  duty  in 
the  Assembly,  added  to  the  short  interval  between  its  final 
adjournment  and  election  of  members  to  Congress,  together 
with  the  badness  of  the  weather,  and  my  own  personal  indisposi- 
tion, have  unfortunately  frustrated  .my  intentions.  Therefore, 
it  is  that  I  am  under  the  painful  necessity  of  following  those 
who  address  you  by  Public  Letter;  an  example  which,  I  confess 


^§142,143]        Campaign  Committees  199 

to  you,  I  am  not  very  fond  of  imitating,  though  the  present 
circumstances  may  perhaps  justify  it."  ^ 

142.  Definition  of  Issues  by  Party  Committees 

As  soon  as  the  nomination  of  candidates  passed  under  the 
control  of  party  organization,  the  management  of  the  campaign 
was  assumed  by  the  same  body  which  nominated  the  candi- 
date. For  instance,  the  New  Castle  County  (Del.)  mass  meet- 
ing which  nominated  a  candidate  for  Congress  and  candidates 
for  county  offices  in  180 1  selected  at  the  same  time  a  committee 
of  two  from  each  hundred  to  conduct  the  campaign  in  behalf 
of  those  nominated.^  Two  years  later  the  Republican  mass 
meeting  of  the  same  party  resolved  that  a  campaign  committee  to 
consist  of  not  less  than  twelve  members  should  be  chosen  by  the 
party  electors  of  the  hundreds.  It  was  the  duty  of  these  com- 
mittees to  correspond  with  other  hundred  committees  and  the 
county  committee  of  correspondence  with  regard  to  all  matters 
pertaining  to  the  campaign.^  Similar  organizations  for  campaign 
purposes  were  formed  at  an  equally  early  period  in  the  coun- 
ties of  Pennsylvania  and  New  Jersey  by  the  Republican  party. 

Likewise  the  state  legislative  caucus,  and  later  the  state 
nominating  convention,  provided  for  state  committees  which 
worked  in  harmony  with  the  county  and  town  or  "hundred" 
committees,  while  at  the  apex  of  the  whole  system  was  the 
National  Committee  chosen  by  the  Congressional  Caucus, 
which  kept  in  close  touch  with  the  state  and  county  commit- 
tees in  all  national  elections. 

143.     Statements  of  Issues  through  Campaign  Literature 

There  was  little  change  in  the  committee  system  when  in 
the  twenties  and  thirties  of  the  nineteenth  century  the  Caucus 
was  superseded  by  the  Nominating  Convention.    These  com- 

^  Pennsyhania  Packet,  February  lo,  1789. 

^  Luetscher,  G.  D.,  Early  Political  Machinery  in  the  United  States,  pp. 
95,  96. 

^  Luetscher,  G.  D.,  Early  Political  Machinery  in  the  United  Stales,  p.  96. 


200  Formulation  of  Issues  [§  144 

mittees  constitute  the  permanent  organization  of  the  party 
and  their  most  strenuous  labor  consists  in  "booming"  the  can- 
didates nominated  by  the  party.  They  raise  the  funds  for  the 
campaign,  engage  the  speakers  and  map  out  their  itineraries, 
supply  the  speakers  and  party  headquarters  with  printed 
material.  The  chief  source  of  information  is  the  campaign 
handbook,  composed  of  the  party  platform,  the  address  of  the 
permanent  chairman  of  the  nominating  convention,  the  letter  of 
acceptance  of  the  chief  nominee,  statistical  material  arranged 
especially  for  use  by  the  campaign  spellbinders,  etc.  The  cam- 
paign handbook  is  but  a  small  part  of  the  pamphlet  material. 
The  RepubHcan  National  Committee  of  1896  issued  over 
200,000,000  copies  of  documents,  while  the  Republican  Con- 
gressional Committee  issued  50,000,000  more.  They  further 
prepared  275  kinds  of  pamphlets  and  leaflets,  besides  scores  of 
posters,  cartoons,  etc.,  printed  in  ten  languages.  They  sup- 
pHed  to  a  selected  list  of  Republican  newspapers  whose  weekly 
circulation  aggregated  1,650,000,  weekly  instalments  of  three 
and  a  half  columns  of  especially  prepared  matter,  while  another 
list  of  papers  with  a  weekly  circulation  of  1,000,000  received 
plate  material.^ 

144.   Statements  of  Issues  through  the  Press 

Furthermore,  the  press  conducts  a  campaign  in  favor  of 
one  candidate  or  party  independent  of  the  material  supphed 
by  the  party  committees.  This  applies  especially  to  our  lead- 
ing journals,  in  whose  columns  appear  dai,ly  editorials,  annoimce- 
ments  of  meeting,  extracts  from  speeches,  letters  upon  political 
questions,  reports  of  interviews,  etc.  Many  of  our  papers 
have  been  brought  into  existence  to  meet  the  political  demands. 
The  final  success  of  the  Republicans  in  1800  and  the  rapid 
dissolution  of  the  Federalists  after  their  first  defeat  was  in  no 
small  measure  due  to  the  establishment  of  RepubHcan  papers 
in  the  doubtful  states,  such  as  the  Aurora  in  Pennsylvania  and 
the  True  American  in  New  Jersey. 

^  Beard,  C.  A.,  Readings  in  American  Government  and  Politics,  p.  171. 


I 


CHAPTER  XV 
NOMINATION  OF  CANDIDATES 

146.  References 

Bibliography:  List  of  References  on  Primary  Elections,  Particularly  Direct 
Primaries  (Government  Printing  Office,  1905);  F.  W.  Dallinger,  Nominations 
for  Elective  Office  (1897),  221-224;  C.  E.  Merriam,  Primary  Elections  (1908), 
Appendix  C;  A.  B.  Hart,  Manual  (1908),  §§  103,  104,  206;  R.  C.  Ringwalt, 
Briefs  on  Public  Questions  (1906),  No.  9. 

Early  Systems  of  Nomination:  C.  Becker,  Nominations  in  Colonial 
New  York  (Am.  Hist.  Rev.,  VT);  C.  Becker,  Growth  of  Revolutionary  Par- 
ties and  Methods  in  N.  Y.  (Ibid.,  VII);  C.  Becker,  Nomination  and  Election 
of  Delegates  from  N.  Y.,  1774  {Pol.  Sci.  Quart.,  March,  1903);  F.  VV. 
Dallinger,  Nominations  for  Elective  Office  (1897),  ch.  i;  E.  C.  Meyer,  Nominat- 
ing Systems  (1902),  ch.  v;  M.  Ostrogorski,  Democracy  and  (tie  Party  Organ- 
ization, II,  part  i,  ch.  i;  G.  D.  Luetscher,  Early  Political  Machitiery  in  the 
U.  S.  (1903),  chs.  ii,  iii,  iv. 

The  Congressional  and  Legislative  Caucus:  N.  Andrews,  Devel- 
opment of  Nominating  Convention  in  R.  I.  (1894),  1-5;  C.  A.  Beard,  Read- 
ings in  American  Government  and  Politics  (1910),  ch.  vii;  M.  Ostrogorski, 
Rise  and  Fall  of  the  Nominating  Caucus  {Am.  Hist.  Rev.,  V);  G.  D.  Luet- 
scher, Early  Political  Machinery  in  the  United  States  (1903),  chs.  iii,  iv. 

The  Convention  System:  N.  Andrews,  Development  of  the  Nominating 
Convention  in  R.  I.  (1894);  J.  S.  Walton,  Nominating  Conventions  in  Penn- 
sylvania {Am.  Hist.  Rev.,  II);  G.  D.  Luetscher,  Early  Political  Machinery  in 
the  U.  S.  (1903),  chs.  i  i  and  iv;  J.  S.  Murdock,  First  National  Nominating 
Convention  {Am.  Hist.  Rev.,  I);  S.  E.  Morison,  First  National  Nominating 
Convention  {Am.  Hist.  Rev.,  XVII);  F.  W.  Dallinger,  Nominations  for  Elec- 
tive Office  (1897),  part  ii,  chs.  ii-iv;  M.  Ostrogorski,  Democracy  aiul  Party 
Organization  (1902),  II,  part  i,  chs.  i-iii;  J.  Br>'ce,  American  Commonwealth 
(rev.  ed.,  1910),  II,  chs.  Ixi.x-lxxii;  J.  Macy,  Party  Organization  and  Machin- 
ery (1904);  H.  J.  Ford,  Rise  and  Groivth  of  Politics  (1898),  ch.  xvi;  E.  Stan- 
wood,  History  of  the  Presidency  (rev.  ed.,  191 2),  ch.  xiv;  T.  H.  McKee, 
National  Conventions  and  Platforms  (1901);  J.  A.  Woodburn,  Political  Par- 
ties and  Party  Problems  (1903):  chs.  xx,  xxi. 

146.   Self  Nomination 

By  far  the  most  important  element  in  the  evolution  of  our 
extra-legal  election  machinery  relates  to  the  methods  adopted 
for  the  nomination  of  candidates  prior  to  the  general  election. 


202  Nomination  of  Candidates  [§  146 

Four  distinct  methods  have  gained  more  or  less  prominence: 
(i)  self -nomination;  (2)  nomination  by  petition;  (3)  nomina- 
tion by  caucuses  and  conventions,  and  (4)  nomination  by  the 
direct  vote  of  the  party  electors.^ 

Though  self-nomination  was  the  customary  method  in  the 
Southern  States  before  parties  were  definitely  organized,  the 
practice  was  not  unknown  in  the  Middle  States.  For  instance, 
in  1789,  Pierce  Van  Cortlandt  announced  his  candidacy  for 
the  office  of  Governor  of  New  York  State,  as  follows:  "As  a 
servant  of  the  public,  I  have  been  requested  by  a  number  of 
my  friends  from  the  several  counties,  to  offer  myself  a  candi- 
date for  Governor  of  the  State  of  New  York  at  the  ensuing  elec- 
tion. I  therefore  hereby  acquaint  my  fellow-citizens  that  if 
they  think  proper  to  give  me  their  suffrage,  that  I  will  serve 
them  to  the  best  of  my  ability."  ^ 

This  method  was  more  frequently  employed  by  candidates 
for  minor  offices.  Up  to  the  rise  of  the  convention  system 
announcements  like  the  following  not  infrequently  appear  in 
New  Jersey  and  Pennsylvania:  "At  the  solicitation  of  a  num- 
ber of  respectable  friends,  I  am  induced  with  the  greatest  of 
deference,  to  offer  myself  a  candidate  for  the  office  of  Sheriff."  ^ 
Even  after  the  county  nominating  convention  had  been  well 
established,  for  some  time  individuals  still  offered  themselves 
as  candidates,  as  is  shown  by  the  following  resolutions  adopted 
by  the  convention  of  Northumberland  (Pa.)  in  1806:  "That 
in  the  opinion  of  this  delegation,  and  they  earnestly  recommend 
it  to  the  adoption  of  their  constituents,  that  no  person  shall  be 
supported  by  them,  after  the  next  general  election,  for  the  office 
of  sheriff,  or  any  other  office  in  the  election  of  the  people,  who 
in  any  way  canvass  for,  or  solicit  these  offices,  unless  first  nomi- 
nated or  brought  into  notice  by  the  general  meeting  of  the 
county  delegates  regularly  convoked."  ^ 

1  This  chapter  follows  in  part  Luetscher,  G.  D.,  Early  Political  Machin- 
ery in  the  United  States,  chapters  3  and  4. 

2  Pennsylvania  Packet,  February  9,  1789. 
'  New  Jersey  Journal,  October  3,  1792. 

*  Aurora,  September  20,  1806. 


§  147]  Correspondence  203 

Personal  nomination  or  "electioneering  in  propria  persona," 
was  frowned  upon  in  the  New  England  States.  One  writer,  in 
commenting  upon  the  personal  method,  asserted  that  in  New 
England  "a  man  dare  not  solicit  any  office  of  the  people:  that 
he  must  wait  until  they  are  pleased  to  elect  him;  if  he  would 
ask  their  votes,  he  would  not  have  one."  ^  Here  candidates 
were  brought  before  the  public  through  their  friends,  a 
method  which  has  had  a  continued  existence  and  is  to-day 
known  as  nomination  by  petition. 

147.   Nominations  by  Correspondence 

When  parties  were  formed  under  Washington's  administra- 
tion and  national  issues  were  introduced  into  state  and  local 
elections,  self-nomination  and  individual  canvassing  were  found 
wanting,  because  they  lacked  the  needed  machinery  for  united 
action.  The  party  leaders  realized  that  an  advantage  might 
be  gained  through  the  adoption  of  a  nominating  system,  which 
would  eliminate  multiplicity  of  candidates  and  enable  them 
to  give  party  support  to  only  one  party  candidate  for  a  single 
oflSce.  This  would  insure  united  action  and  better  results  on 
election  day.  A  few  sporadic  efforts  were  made  to  accomplish 
this  through  a  system  of  correspondence.  Between  1788  and 
1800  this  method  was  used  in  the  nomination  of  candidates  in 
New  York  State.  The  party  electors  of  each  township  met, 
proposed  candidates,  and  then  appointed  a  committee  for  the 
purpose  of  corresponding  with  other  township  committees  of 
the  county.^  Pre-election  correspondence  of  this  kind  usu- 
ally resulted  in  some  agreement  as  to  the  candidates  to  be 
supported  by  party  voters  on  election  days. 

In  Pennsylvania  an  attempt  was  made  to  extend  this  method 
to  the  selection  of  candidates  for  offices  representing  the  state 
as  a  whole.  In  1792  the  congressional  representatives  of  Penn- 
sylvania were  chosen  upon  a  general  ticket.    The  Republican 

'  Rutland  Herald,  October  17,  1796. 

2  Luetscher,  G.  D.,  Early  Political  Machinery  in  the  United  States,  pp. 
72-73. 


204  Nomination  of  Candidates  [§  148 

electors  of  each  county  selected  a  committee  of  correspondence. 
The  Philadelphia  committee  assumed  the  leadership  and  sent 
out  520  letters  to  persons,  representing  each  county,  selected 
by  themselves.  The  persons  addressed  were  asked  to  suggest 
candidates.  RepHes  received  from  seventeen  out  of  the  twenty 
counties  suggested  forty-three  names.  These  names  were 
then  submitted  to  county  meetings  and  their  selections  were 
submitted  to  the  Philadelphia  committee,  and  from  these 
selections  the  Philadelphia  committee  formed  a  ticket  of  thir- 
teen candidates  for  Congress.  This  cumbersome  method  could 
not  survive  and  it  gave  way  to  the  congressional  and  legisla- 
tive caucus  in  national  and  state  nominations  and  to  the  mass 
meeting  and  convention  in  local  nominations.^ 

148.  Nominations  by  Caucuses  of  Congress  and  Legislatures 

The  nominating  caucus  was  composed  of  those  members 
of  Congress  or  of  a  state  legislature  who  belonged  to  the  same 
party.  The  legislative  caucus,  however,  was  rarely  composed 
exclusively  of  members  of  the  state  legislature:  for  instance, 
the  Maryland  caucus  held  by  the  Federalists  in  1788  included 
"friends  of  the  new  Constitution"  2;  the  first  Virginia  caucus, 
convened  by  the  Republicans  in  1800,  included  "a  number  of 
respectable  citizens"^;  while  the  Republican  caucus  of  New 
Hampshire,  held  in  1804,  was  attended  by  a  "large  number  of 
respectable  citizens  from  the  distant  parts  of  the  state."  *  It 
is  therefore  apparent  that  the  champions  of  the  caucus  system 
were  exceedingly  anxious  to  make  it  appear  that  the  selection  of 
candidates  was  not  exclusively  the  work  of  the  party  members 
of  the  legislature. 

There  was  much  need  for  apologies,  for  the  system  was  never 
popular.  The  objections  were  formulated  by  the  Legislature  of 
Tennessee  in  1824  under  five  headings:   (i)  it  violates  the  prin- 

^  Luetscher,  G.  D.,  Early  Political  Machinery  in  the  United  States,  p.  132. 

*  Maryland  Journal  and  Baltimore  Advertiser,  January  2,  1789. 
'  Virginia  Argus,  October  14,  1800. 

*  Portsmouth  Oracle,  February  25,  1804. 


§  149]  Mass  Meetings  205 

ciple  of  separation  of  powers  by  giving  the  legislature  undue 
influence  over  the  executive;  (2)  it  is  inexpedient  and  impol- 
itic; (3)  members  of  Congress  may  become  electors  upon  failure 
of  election  by  the  electoral  college,  and  hence  will  be  preju- 
dicial in  favor  of  the  caucus  nominee;  (4)  equality  of  states  is 
destroyed  in  the  caucus  system;  (5)  the  caucus  system  may 
acquire  the  force  of  precedent  if  not  aboUshed.^ 

Another  charge  against  the  caucus  system,  not  contained  in 
the  above  enumerations,  was  that  the  caucus  did  not  represent 
the  party  and  could  not  speak  for  voters  in  the  districts  which 
were  represented  in  the  state  legislature  by  the  opposing  party. 
The  Repubhcans  of  Pennsylvania  attempted  to  remedy  this 
defect  in  1808  by  providing  that  legislative  districts  not  rep- 
resented in  the  legislature  by  members  of  their  own  party 
should  be  allowed  to  choose  delegates  who  were  to  meet  with 
the  caucus.^  This  method,  however,  was  only  sparingly 
adopted.  The  opponents  of  the  caucus  demanded  its  aboli- 
tion and  the  outright  substitution  of  the  nominating  conven- 
tion. They  might  have  strengthened  their  demand  by  calling 
attention  to  the  fact  that  the  nominating  convention  had  been 
successfully  operated  in  the  selection  of  candidates  for  district, 
county,  and  city  offices  in  the  Middle  States  since  1800. 

149.   Nominations  by  Local  Conventions  and  Mass  Meetings 

The  local,  or  county  nominating  convention,  had  its  origin 
in  the  county  and  city  mass  meeting  of  party  electors.  At 
the  beginning  of  our  party  system  a  few  leaders  assumed  the 
authority  to  issue  a  call  for  a  meeting  of  the  party  electors  in 
the  county,  city,  or  town  at  a  specified  time  and  place,  for  the 
purpose  of  selecting  candidates  to  offices  representing  these 
local  units.  This  method  was  democratic  in  theory  and  a  fea- 
sible system  where  a  small  political  unit,  such  as  the  town  of 
New  England,  chose  the  important  local  officers.     But  this 

'  Beard,  C.  A.,  Rradiui^s  on  Amefican  Govcrumcnl  and  Politics,  p.  ii8. 
*  Walton,  J.  S.,  Nominating  Contmtitns  in  Pennsylvania  {Am.  Hist.  Rev., 
vol.  ii). 


2o6  Nomination  of  Candidates  [§  150 

method  was  not  workable  for  the  election  of  important  local 
officers  in  the  Middle  and  Southern  States,  where  the  county 
was  the  smallest  poUtical  unit.  The  county  mass  meeting  was 
practically  in  the  control  of  the  party  electors  from  the  imme- 
diate vicinity  of  the  place  of  meeting,  inasmuch  as  few  elec- 
tors attended  from  the  remote  districts.  Several  devices  were 
adopted  to  protect  the  interests  of  the  remote  districts:  the 
mass  meeting  often  appointed  a  committee  for  nominating  pur- 
poses, composed  of  an  equal  number  of  electors  from  each 
town,  hundred,  or  election  district ;  ^  or  the  nominating 
committee  was  composed  of  a  proportional  representation, 
based  upon  the  numerical  strength  of  the  party  in  the  delegate 
districts.^ 

Still  another  method  was  occasionally  adopted.  The  can- 
didates were  first  proposed  by  the  mass  meeting,  and  the  elec- 
tors present  from  the  different  districts  were  then  directed  to 
meet  at  a  place  specified  by  the  chairman  to  agree  upon  one  of 
the  candidates  already  put  into  nomination  by  the  mass  meet- 
ing. The  convention  met  later  in  the  day,  when  the  reports 
from  the  different  districts  were  tabulated  and  the  results 
announced.^ 

150.  Nominations  by  County  Conventions 

Although  these  methods  secured  the  just  influence  of  each 
district  in  nominations,  they  were  by  no  means  satisfactory. 
The  poUtical  fortune  hunter  from  the  remote  districts  was 
sure  to  attend  the  mass  meeting,  while  the  more  sober  part  of 
the  community  frequently  considered  the  time  and  expense 
involved  too  great.  It  was  for  these  reasons  that  the  county 
mass  meeting  gave  way  to  the  county  convention,  composed 
of  delegates  chosen  by  the  party  electors  of  the  town,  hundred, 
or  election  district.    This  reduced  the  burden  of  the  elector  to 

^  Mirror  (Del.),  September  7,  i799- 

2  Luetscher,  G.  D.,  Early  Political  Machinery  in  the  United  States,  p.  98. 

»  This  system  was  used  by  the  Republican  Party  in  Bucks  County  (Pa.) 

as  late  as  1907,  when  the  Pennsylvania  Uniform  Primary  Act  went  into  force. 


§  i5i]  County  Convention  207 

a  minimum  and  made  possible  the  selection  of  delegates  who 
were  representative  of  the  wishes  of  the  party  electors.  This 
transition  from  the  county  mass  meeting  to  the  delegate  con- 
vention took  place  in  the  Middle  States  between  1800  and  18 10. 
The  mass  meeting  survived  in  the  New  England  States,  because 
only  a  limited  number  of  ofi&cers  were  chosen  by  a  larger 
political  unit  than  the  town.  It  also  survived  in  the  Southern 
States  for  some  time,  because  prior  to  1830  the  counties  were 
not  divided  into  election  districts,  the  only  political  subdivisions 
of  the  county,  from  which  delegates  could  be  elected  to  the 
county  convention. 

The  convention  system  was  essentially  the  organization  of 
the  Jeffersonian  Republican  Party,  for  the  FederaHst  described 
popular  organization  as  "mob  organization."  It  adininis- 
tered  a  deathblow  to  the  theory  of  the  FederaHsts  that  oflfice 
holding  should  be  limited  to  the  well-born.  It  refused  to  rec- 
ognize the  former  practice  that  ofhce  holding  should  be  a  pro- 
fession and  substituted  the  doctrine  of  rotation  in  oflSce.  The 
new  principles  were  naturally  popular  with  the  mass  of  voters 
from  the  beginning,  and  organization  was  the  only  thing  needed 
to  put  them  into  practice.  This  organization  the  convention 
system  suppUed,  and  the  rapid  dissolution  of  the  Federal 
Party  was  a  natural  consequence. 

151.  Example  of  a  County  Convention 

The  following  articles  of  association  drawn  up  by  the  Repub- 
lican Party  of  Bucks  County,  Pa.,  in  1803  show  the  degree  of 
perfection  which  the  county  convention  attained  in  some  local- 
ities from  the  very  beginning: 

"The  County  Convention 

^'Articles  of  Association  > 

"Resolved,  That  the  Republican  Committee  of  Bucks  County 
shall  hereafter  be  chosen  at  the  same  places  and  at  the  same  day 


2o8  Nomina'tion  of  Candidates  [§  151 

as  township  officers  are  chosen;    viz.,  the  third  Saturday  of 
March  in  every  year  between  the  hours  of  4  and  8  o'clock, 

P.M. 

"  Resolved,  that  the  election  shall  be  pubHshed  and  conducted 
in  the  manner  following,  viz.: 

I.  The  Secretary  of  the  meeting  shall  give  notice  thereof 
ten  days  before,  in  one  or  more  of  the  public  papers  which  cir- 
culate generally  in  the  County. 

II.  The  members  of  the  committee  for  the  townships  re- 
spectively shall  give  the  like  timely  notice  thereof,  by  written 
or  printed  advertisements,  set  up  in  four  or  more  pubHc  places 
in  each  township. 

III.  At  the  time  and  place,  two  judges  of  election,  and  one 
secretary  shall  be  chosen,  and  they  or  any  two  of  them  shall 
decide  the  qualifications  of  the  electors,  shall  cause  the  election 
to  be  fairly  conducted  and  certify  under  their  hands,  the 
names  of  the  persons  chosen. 

IV.  Each  township  shall  elect  one,  two,  or  three  members, 
at  their  discretion,  but  in  fixing  the  ticket  for  the  general  elec- 
tion, each  township  shall  have  only  one  vote,  and  if  the  mem- 
bers of  any  township  are  equally  divided  and  cannot  agree, 
such  township  shall  lose  its  vote. 

V 

VI.  At  this  election,  every  person  shall  have  a  right  to  elect 
and  to  be  elected,  who  is  entitled  to  vote  at  the  general  elec- 
tion, provided  he  professes  to  be  a  Democratic  Republican  and 
has  supported  the  character  for  at  least  six  months  then  last 
past. 

VII.  .  .  . 

VIII.  From  and  after  the  third  Saturday  of  March,  the 
power  of  the  preceding  County  Committee  shall  cease  and 
determine  and  the .  committee  chosen  as  aforesaid,  shall  hold 
its  first  stated  meeting  at  the  public  house  now  kept  by  Josiah 
Addis  on  the  first  Tuesday  of  September  the  following  at  ten 
o'clock,  in  the  forenoon.  At  this  meeting,  a  nomination  shall 
be  made  of  candidates  to  fill  the  several  elective  offices  of  the 


§  152]  State  Conventions  209 

state  representatives,  sheriffs,  coroners,  and  county  commis- 
sioners; and  also  state  senators  and  representatives  for  Con- 
gress, when  occasion  requires;  and  each  member  shall  have  a 
right  to  put  in  nomination,  who  and  as  many  as  he  pleases, 
provided  that  any  person  nominated,  shall  have  the  right  to 
withdraw  his  name. 

IX.  The  committee  shall  cause  publication  to  be  made,  in 
one  or  more  of  the  newspapers,  of  the  nominations  aforesaid, 
and  of  the  time  and  place  of  forming  the  ticket;  and  they 
shall  accordingly  meet  at  the  same  place  or  at  Dunlap's  Tavern 
on  the  third  Tuesday  of  the  same  month,  and  shall  between  the 
hours  of  three  and  six  o'clock  p.m.  choose  by  ballot  out  of  the 
candidates  nominated  as  aforesaid,  the  number  to  be  voted  for 
at  the  succeeding  general  election. 

X.  When  the  members  of  Congress  are  to  be  chosen,  confer- 
ees in  behalf  of  this  County  shall  be  elected  by  this  committee 
on  the  said  third  Tuesday  of  September,  seasonable  public  no- 
tice thereof  being  previously  given,  and  we  advise,  that  the 
conferees  from  this  and  the  other  Counties  concerned,  meet 
at  Hartzell's  Tavern  in  Northampton  County  on  the  fourth 
Tuesday  of  September,  and  fix  the  ticket  for  represen- 
tatives to  Congress.  When  the  Committee  conceive  that 
this  county  is  entitled  to  furnish  a  candidate  for  Congress, 
they  may  by  ballot  or  otherwise,  fix  the  candidate,  and 
instruct  their  conferees  to  endeavor  to  have  his  name  placed 
in  the  ticket."  ^ 

152.  Early  State  Nominating  Conventions 

Hence,  when  between  1820  and  1832  the  caucus  finally  yielded 
to  the  state  and  national  nominating  convention,  the  system 
already  in  use  in  local  nominations  was  easily  extended. 
Neither  was  the  state  nominating  convention  anything  new 
when  it  became  general  in  the  twenties.  Such  a  convention 
was  held  by  the  Federalists  of  Pennsylvania  for  the  nomination 
of  congressional  representatives  and  presidential  electors  in 
^  True  American  (Trenton,  N.J.),  February  21,  1803. 
IS 


2IO  Nomination  of  Candidates  [§152 

1788^  and  1792.2  It  was  abandoned  chiefly  because  of  the 
difl5culties  of  travel  and  the  absence  of  the  local  conventions 
upon  which  it  had  to  rest.  Ten  years  later  the  state  nominat- 
ing convention  was  revived  in  the  states  of  New  Jersey  and  Del- 
aware. These  states  were  comparatively  small  and  no  large 
mountains  or  rivers  interfered  with  travel,  and  the  local  or 
county  convention  and  the  state  convention  were  introduced 
practically  at  the  same  time. 

In  1800  "delegates  from  the  counties  of  Essex,  Middlesex, 
Somerset,  Morris,  Sussex,  Hunterdon,  Burlington,  Glouces- 
ter, Salem,  and  Cumberland"  of  New  Jersey  met  to  nominate 
a  congressional  ticket.  Only  three  counties  were  unrepresented, 
one  of  which  was  situated  in  the  extreme  southern  part  of  the 
state  and  another  in  the  extreme  northern  part.^  In  the  Re- 
publican Convention  of  1804  which  nominated  both  candidates 
for  Congress  and  presidential  electors,  every  county  was  rep- 
resented. This  convention  met  on  October  3,  "with  an  eye 
to  the  accommodation  of  every  part  of  the  state  as  the  certain 
means  of  preservdng  union  and  harmony  of  interests."'* 

The  Federalists  of  the  state  despised  the  methods  of  "this 
organized  mob"  and  attempted  to  put  their  ticket  in  U  bad 
light.  They  asserted  that  "half  a  dozen  men  in  each  coimty 
get  together  and  appoint  themselves  or  friends  delegates  to  a 
meeting  held  in  Trenton  .  .  .  and  these  delegates  choose  them- 
selves or  their  friends  members  to  Congress."  ^  The  fact, 
however,  is  that  delegates  to  the  state  convention  were  chosen 
in  most  instances  by  county  conventions,  which  were  composed 
of  delegates  chosen  by  the  townships.  The  system  did  give  the 
voters  of  the  party  an  opportunity  to  express  their  choice  with- 
out any  hardship  of  travel  or  great  demand  upon  their  time. 
And  still  more  significant  is  the  fact  that  after  1800  the  Fed- 

'  Luetscher,  G.  D.,  Early  Political  Machiiury  in  the  United  States,  pp. 
I 26-30. 

2  Leutscher,  G.  D.,  Early  Political  Machinery  in  the  United  States,  p.  132. 

*  New  Jersey  Federalist,  December  23,  1800. 

*  True  American,  1804,  August  20;  September  3,  24;  October  8,  29. 
^  New  Jersey  Federalist,  October  29,  1804. 


§§  i53>  154]  Downfall  of  Caucus  21 1 

eralists,  who  were  an  overwhelming  majority  prior  to  1800, were 
completely  routed.  The  Republican  methods  clearly  had  the 
confidence  of  the  masses. 

163.  Federalists  Adopt  the  Convention  System 
One  state  in  which  the  Federalists  realized  the  advantage  of 
adopting  an  organization  based  upon  the  masses  was  Delaware. 
An  active  campaign  for  the  holding  of  a  state  nominating  con- 
vention was  started  among  the  RepubUcans  of  New  Castle 
County  in  1801/  but  the  remaining  two  counties  did  not  respond. 
The  movement  was  again  started  in  1802  for  the  purpose  of 
nominating  a  candidate  for  Congress,  and  as  a  result  a  state 
nominating  convention  was  held  in  Dover  on  June  5  of  that 
year.2  As  a  reward  of  this  united  action  the  RepubUcans  won 
their  first  victory  in  the  election  of  their  nominee  to  Congress. 
The  Federalists  soon  saw  the  advantage  of  their  opponents 
and,  by  1810,  state  nominating  conventions  had  become  the 
regular  form  of  procedure  of  that  party.'  This  may  in  a  meas- 
ure account  for  the  fact  that  the  FederaHsts  continued  as  a 
party  in  Delaware  long  after  that  party  had  become  extinct 
in  other  states.  This  fact  is  strikingly  illustrated  by  the  fol- 
lowing statement  which  appeared  in  the  Delaware  Gazette  of  Au- 
gust 25,  1823:  "As  ours  is  the  only  state  in  which  a  contest  can 
now  be  made  on  the  old  party  grounds,  we  may  expect  to  be 
viewed  with  intense  interest  by  the  citizens  of  other  states."  ^ 

154.   Downfall  of  the  Caucus  Nominating  System 

In  all  the  remaining  states,  however,  the  legislative  caucus 
continued  as  the  method  of  selecting  state  candidates  until  the 
twenties.  The  caucus  was  superseded  by  the  state  nominating 
convention  in  Pennsylvania,  New  York,  and  Rhode  Island  in 
1824,  in  Vermont  in  1829,'^  and  in  New  Hampshire  in  1831, 

^  Mirror  (Del.),  1801,  April  ii  and  22,  May  6. 

^  Mirror  (Del.),  1802,  June  5  and  July  17. 

'  Luetscher,  G.  D.,  Early  Political  Machinery  in  the  United  States,  p.  149. 

*  Delaware  Gazette,  Aug.  25,  1823. 

^  Luetscher,  G.  D.,  Early  Political  Machinery  in  the  United  States,  p.  124. 


212  Nomination  of  Candidates  [§155 

where  the  caucus  itself  provided  for  its  dissolution  by  issuing 
the  following  call  for  the  first  state  nominating  convention 
held  in  that  state  : 

"That  it  is  the  opinion  of  this  convention  [legislative  caucus] 
that  a  state  convention  of  delegates,  equal  to  the  number  of 
representatives  in  the  State  Legislatures,  should  be  holden 
in  this  state  as  often  at  least  as  once  in  every  two  years;  and 
that  this  convention  authorize  and  request  the  Repubhcan  Cen- 
tral Committee  to  issue  circulars  to  suitable  persons  of  the 
several  towns,  recommending  the  choice  of  delegates  to  meet 
in  convention  at  Concord  on  the  third  Wednesday  of  June, 
1832,  for  the  purpose  of  nominating  suitable  candidates  to  be 
supported  as  Representatives  in  Congress  and  Electors  of 
President  at  the  next  election,  also  to  nominate  such  State, 
District,  and  County  Ofiicers  as  may  be  thought  expedient."^ 

The  New  Hampshire  resolution  touches  upon  several  impor- 
tant elements  in  the  convention  system.  It  shows  that  from  the 
caucus  had  evolved  the  state  committee  system,  which  com- 
mittee was  continued  with  little  change  under  the  convention 
system.  The  resolution  also  establishes  a  basis  of  representa- 
tion by  providing  that  it  shall  be  the  same  as  the  representation 
in  the  lower  house  of  the  state  legislature.  This  was  a  very 
simple  solution  of  the  problem  of  representation  in  the  conven- 
tion and  at  first  this  solution  was  adopted  in  most  of  the  states. 
In  some  states  this  meant  representation  according  to  popu- 
lation, while  in  other  states  where  the  towns  or  counties  were 
equally  represented  it  meant  that  each  delegate  district  should 
have  equal  influence.  As  time  went  on  many  state  and  local 
party  organizations  gradually  rejected  both  of  these  systems 
of  representation  and  introduced  a  system  of  representation 
based  upon  the  party  vote  in  the  delegate  districts. 

155.     Transition  in  Presidential  Nominations 

The  general  transition  from  the  legislative  caucus  to  the 
state  nominating  convention  in  the  twenties  prepared  the  way 
1  New  Hampshire  Patriot,  June  23,  1831. 


I 


§156]  Presidential  Nominations  213 

for  the  National  Nominating  Convention.  The  last  congres- 
sional caucus  was  held  in  1824  when  only  one-fourth  of  the 
members  of  Congress  attended.^  Crawford,  the  caucus  candi- 
date, was  hence  only  a  minority  choice,  and  other  candidates 
were  nominated  by  the  legislatures  of  different  states.  South 
Carolina  nominated  Calhoun;  Massachusetts  and  other  New 
England  states,  John  Quincy  Adams;  Tennessee,  Andrew 
Jackson;  and  Kentucky,  Henry  Clay.  This  complete  disin- 
tegration of  national  party  organization  was  due  to  the  merg- 
ing of  issues  in  the  Jeffersonian  Republican  Party,  as  the  party 
representing  American  ideas  and  American  interests;  the  dis- 
appearance of  the  Federal  Party  after  the  War  of  181 2,  and  the 
"era  of  good  feeling"  which  followed;  the  breaking  up  of  the 
Republican  Party  on  issues  largely  economic  and  sectional 
which  issues  crystallized  around  personal  instead  of  party 
leadership.  These  leaders  sought  one  method  or  another  of 
nomination,  as  seemed  most  advantageous  to  them. 

Candidates  continued  to  be  nominated  by  state  legislatures 
in  1828;  new  party  alignment  began  to  appear;  some  system 
for  the  elimination  of  candidates  was  absolutely  essential,  and 
the  convention  system  adopted  by  the  states  for  state  nom- 
inations was  thereafter  adopted  for  the  selection  of  party 
candidates  for  President  and  Vice-President. 

166.  First  National  Nominating  Convention 

The  first  national  nominating  convention,  composed  of  one 
hundred  and  twelve  delegates  from  thirteen  Northern  States, 
was  held  in  1830  by  the  Anti-Masonic  Party.  It  met  in  answer 
to  the  following  call  issued  by  a  meeting  of  Anti-Masons  con- 
vened in  Philadelphia  in  September,  1830: 

"Resolved,  That  it  is  recommended  to  the  people  of  the 
United  States,  opposed  to  secret  societies,  to  meet  in  conven- 
tion on  Monday,  the  i6th  day  of  September,  1831,  at  the  City 
of  Baltimore,  by  delegates  equal  in  number  to  their  represen- 
tatives in  both  Houses  of  Congress,  to  make  nominations  of 
^  McKee,  T.  H.,  National  Conventions  and  Platforms,  p.  20. 


214 


Nomination  of  Candidates 


[§157 


suitable  candidates  for  the  oflSce  of  President  and  Vice-Presi- 
dent to  be  supported  at  the  next  election,  and  for  the  transac- 
tion of  such  other  business  as  the  cause  of  Anti-Masonry  may 
require."  ^ 

In  December  of  the  same  year  (1831)  the  National  Repub- 
lican Party  held  a  national  nominating  convention  at  Baltimore, 
composed  of  one  hundred  and  seventy-seven  delegates  repre- 
senting seventeen  states,^  In  the  following  year  the  Democratic 
Party  held  a  national  nominating  convention.  Delegates  were 
present  from  every  state  except  Missouri.^  At  this  convention 
the  Committee  on  Rules  adopted  the  same  principle  with 
regard  to  the  representation  of  each  state  in  the  convention 
which  prevailed  in  the  Anti-Masonic  Party;  but  added  the 
important  provision  that  "two- thirds  of  the  whole  number  of 
votes  in  the  convention  shall  be  necessary  to  constitute  a 
choice." 


167.   Growth  of  Rules  of  the  National  Conventions 

This  was  the  beginning  of  the  two-thirds  rule  which  has  gov- 
erned all  succeeding  democratic  conventions.  The  continuance 
of  this  provision  is  partly  due  to  the  fact  that  the  Dem- 
ocratic National  Convention  has  limited  itself  to  the  determi- 
nation of  the  number  of  delegates  to  which  each  state  is  entitled 
in  the  convention.  The  method  of  selection  of  the  delegates 
within  the  state  and  the  manner  of  casting  the  votes  of  the 
delegates  is  left  to  the  state  party  to  determine.  Thus,  the 
state  committee  or  convention  may  determine  that  the  dele- 
gates shall  be  chosen  by  the  state  convention  or  by  districts;  it 
may  decide  that  the  national  delegates  shall  vote  as  a  body  or 
by  districts.  In  fact,  the  Democratic  rules  permit  the  adop- 
tion of  the  rule  that  a  majority  of  the  delegates  from  a  state 
shall  determine  the  entire  vote  of  the  state.  The  latter  provi- 
sion is  usually  known  as  the  unit  rule  and  under  its  operation 

1  McKee,  T.  H.,  National  Conventions  and  Platforms,  pp.  30,  31. 

2  McKee,  T.  H.,  National  Conventions  and  Platforms,  p.  28. 

3  McKee,  T.  H.,  National  Conventions  and  Platforms,  p.  27. 


§157)  Subversion  of  Conventions  215 

it  is  desirable  that  more  than  a  majority  vote  should  be 
required  to  determine  the  result  of  the  convention,  for 
under  a  simple  majority  rule,  the  kindred  factions  in 
several  large  states  might  combine  and  practically  control  the 
nomination.^ 

The  Republican  Party,  on  the  other  hand,  has  adhered  to 
the  poUcy  that  each  delegate  shall  be  permitted  to  cast  his  vote 
individually.  In  harmony  with  this  practice,  the  party  rules 
further  provide  that  the  delegates  shall  be  chosen  by  congres- 
sional districts,  save  that  the  delegates  at  large  correspond- 
ing to  its  two  senators  and  its  congressmen  at  large,  if  any, 
shall  be  chosen  by  the  state  at  large.  Under  this  system 
there  is  not  much  need  to  protect  the  minority  by  a  two- 
thirds  vote  provision,  and  the  Republican  Party  has  therefore 
adhered  to  the  policy  that  a  majority  of  all  the  delegates  in 
favor  of  a  candidate  shall  constitute  a  choice. 

It  has  been  noted  that  the  early  national  conventions  pro- 
\dded  that  the  number  of  delegates  from  each  state  shall  be 
equal  to  the  number  of  presidential  electors  to  which  each  state 
is  entitled.  Since  then  all  of  the  parties  have  increased  this 
number  to  twice  the  number  of  presidential  electors.  Hence 
at  the  present  time  the  Republican  electors  of  each  congres- 
sional district  select  two  delegates  to  the  National  Convention, 
while  the  state  chooses  four  delegates  at  large.  As  a  result, 
the  national  conventions,  unlike  our  state  nominating  conven- 
tions, are  representative  of  the  population  of  each  state,  save 
the  four  delegates  representing  the  two  senators.  This  dis- 
regard of  party  strength  is  especially  noticeable  in  the  Repub- 
lican national  conventions,  since  the  support  of  this  party  is 
chiefly  in  the  North.  It  is  often  claimed  that  this  gives  the 
Southern  States  an  undue  influence  in  the  Convention,  but  no 
serious  effort  has  yet  been  made,  save  by  the  recent  action 
of  the  National  Progressive  Party,  to  apportion  the  delegates 
upon  the  basis  of  the  number  of  party  electors,  as  is  the  case 
in  some  state  and  local  conventions. 

*  Macy,  Jesse,  Party  Organization  and  Machinery,  p.  83. 


2i6  Nomination  of  Candidates    [§§158,159 

168.  Methods  Employed  to  Subvert  the  Purposes  of  the  Convention 

The  evolution  of  the  nominating  machinery  to  express  the 
popular  will  in  nominations  through  the  action  of  delegates, 
chosen  either  directly  or  indirectly  by  the  party  electors,  has 
been  traced  in  detail,  so  as  to  show  how  the  system  has  been 
advantageous.  In  theory  the  nominating  convention,  the  form 
persisting  down  to  191 2,  constituted  a  perfect  system  for  the 
nomination  of  party  candidates  for  elective  offices.  Histori- 
cally many  imperfections  have  developed.  It  soon  became  Evi- 
dent that  the  system  could  be  manipulated  in  the  interests  of 
a  small  group,  who,  by  making  politics  a  business,  were  able 
to  gain  control  over  the  nominating  machinery  for  selfish  ends. 
Many  clever  devices  served  to  subvert  party  opinion  as  ex- 
pressed through  delegates.  Snap  caucuses  were  held  at  incon- 
venient times  and  places  without  due  notice  in  order  to  insure 
the  attendance  only  of  electors  favorable  to  particular  candi- 
dates, and  these  would  choose  delegates.  Voters  were  intim- 
idated, unreasonable  tests  of  party  membership  were  enforced, 
fraudulent  votes  were  cast,  and,  if  necessary,  the  returns  were 
falsified.  Likewise,  the  convention  itself  was  manipulated  in 
the  interests  of  this  same  group  by  means  of  bribery,  trickery, 
threats,  and  promises  of  pohtical  preferment.  As  early  as 
1844  John  C.  Calhoun  declared  that  he  should  never  have 
assisted  in  the  abolition  of  the  congressional  caucus  had  he 
anticipated  the  pernicious  practices  of  the  convention  system, 
and  at  the  same  time  declared  he  would  never  accept  a  nomina- 
tion at  the  hands  of  the  convention.^ 

159.   Attempts  to  Reform  the  Convention  System 
In  many  quarters  attempts  were  made  to  eliminate  these 
evils,  especially  in  the  counties  of  Pennsylvania.^    Rules  were 

1  Bryce,  James,  American  Common-ivealtH  (3d  ed.),  vol.  ii,  pp.  177.  178. 

2  The  brief  summary  of  experiments  adopted  by  the  Republican  and 
Democratic  organizations  in  their  respective  counties  is  based  upon  an 
analysis  of  the  county  rules  of  both  parties  in  operation  in  1906  immediately 


§159]  Reform  of  Convention  217 

drawn  up  which  prescribed  the  place  and  time  of  holding  the 
primary,  requiring  the  publication  of  notices  of  the  primary 
meetings  in  the  newspapers  two  or  more  weeks  before  the  date 
of  the  meeting.  Provision  was  made  for  the  election  of  primary 
oflScers  and  the  manner  of  counting  the  votes  and  declaring  the 
returns.  The  reform  did  not  stop  with  the  primaries,  for  many 
of  the  county  rules  adopted  novel  devices  which  aimed  to  control 
the  votes  of  the  delegates  at  the  convention  in  the  interests 
of  the  party  electors  by  granting  the  party  electors  the  power 
to  vote  for  candidates  as  well  as  delegates  at  the  primaries. 

According  to  some  rules  the  delegate  was  directed  to  cast 
his  first  ballot  in  the  convention  for  the  candidate  receiving 
the  greatest  number  of  votes  in  his  district.  In  case  the  first 
ballot  did  not  result  in  a  majority  vote  of  all  delegates,  the 
lowest  candidate  was  dropped  and  the  delegate  instructed  for 
the  dropped  candidate  was  directed  to  cast  the  second  ballot 
for  the  candidate  receiving  the  second  highest  vote  in  his  dis- 
trict. This  process  was  repeated  imtil  some  candidate  received 
a  majority  vote  in  the  convention. 

Other  rules  aimed  to  express  the  will  of  the  party  voters 
in  a  sUghtly  different  manner.  The  delegate  was  directed  to 
cast  the  party  vote  of  his  district  (registered  at  the  last  pre- 
ceding gubernatorial  election)  for  the  candidate  who  received 
the  largest  number  of  votes  in  his  district  at  the  primary.  If 
this  did  not  result  in  a  majority  of  all  the  votes  so  cast  for  one 
candidate,  then  the  lowest  candidate  was  dropped  and  the  votes 
of  his  district  were  cast  for  the  candidate  who  was  his  nearest 
competitor  in  the  district. 

Still  another  system  was  adopted  by  a  number  of  county 
rules  which  aimed  to  record  the  will  of  the  party  electorate 
even  more  accurately.  This  system  is  illustrated  by  the  fol- 
lowing provision  of  the  Chester  County  (Pa.)  Rules:  "Each 
elector  shall  have  the  right  to  a  vote  for  one  candidate  for  each 

preceding  the  enactment  of  the  Pennsylvania  primary  law  of  1906,  which 
prescribed  the  direct  system  for  the  selection  of  all  candidates  save  candidates 
for  offices  chosen  by  the  state  at  large. 


21 8  Nomination  of  Candidates  [§  i6o 

office  to  be  filled  for  first  choice  and  another  candidate  to 
be  filled  for  each  office  for  second  choice;  but  no  person 
shall  be  permitted  to  vote  first  and  second  choices  for  the 
same  candidate  for  the  same  office.  ,  .  .  The  person  having  the 
greatest  number  of  first  choices  for  any  particular  office  shall 
be  declared  the  first  choice  of  the  district  and  shall  be  voted 
for  as  such  by  the  delegate  or  delegates  to  the  nominating  con- 
vention. The  first  and  second  choice  votes  cast  for  each  of  the 
other  candidates  shall  then  be  respectively  added  together  and 
the  candidate  receiving  the  highest  of  each  aggregate  shall  be  de- 
clared the  second  choice  of  the  district  and  shall  be  voted  for  as 
such."  No  delegate  was  called  upon  to  cast  a  vote  for  the  sec- 
ond choice  of  his  district  unless  the  first  ballot  in  the  convention 
did  not  result  in  a  majority  vote  for  any  candidate  and  unless, 
in  the  ballot  which  followed  their  first  choice,  the  candidate 
happened  to  be  the  lowest  on  the  list  and  hence  was  dropped. 

160.     Growth  of  the  Direct  Primary  System 

A  large  number  of  the  county  organizations  in  both  the  lead- 
ing parties  aimed  to  simplify  the  nominating  system  by  abohsh- 
ing  the  convention  entirely  and  thus  eliminating  the  names  of 
delegates  from  the  primary  ballot.  This  is  known  as  the  Craw- 
ford County  system,  for  the  reason  that  it  was  adopted  for  the 
first  time  by  the  Republican  organization  of  Crawford  County, 
Pa.,  in  1 868.  This  pure  direct  system  of  nomination  spread 
eventually  to  other  counties,  so  that  by  1906,  when  this 
method  was  made  mandatory  by  law  in  all  nominations  (save 
in  the  selection  of  candidates  for  state  offices),  it  had  already 
been  accepted  by  at  least  one-third  of  the  county  organizations 
of  both  parties. 

The  opponents  of  the  system  urged  against  it  a  very  grave 
defect:  it  could  not  guarantee  the  selection  of  a  candidate  by  a 
majority  vote  of  all  the  electors,  unless  if  no  one  had  a  majority 
a  second  primary  could  be  held,  limited  to  the  two  highest  can- 
didates of  the  first  primary.  This  expedient  was  nowhere 
adopted  by   the   county   organizations  of  Pennsylvania.    In 


§  i6o]  Growth  of  Primaries  219 

place  of  it  the  combination  of  the  convention  and  direct  vote 
principle  was  adopted  by  a  number  of  counties  in  the  form 
traced  above,  with  provisions  for  successive  ballots,  etc.,  in  the 
convention  until  a  majority  vote  was  obtained.  No  further 
discussion  of  the  merits  of  these  different  solutions  need  be 
given  here,  for  the  problem  reappears  in  relation  to  the  legal 
regulation  of  the  nomination  of  candidates. 


CHAPTER  XVI 

REGISTRATION    OF    VOTERS 

161.  References 

H.  C.  Black,  Constitutional  Law  (1895),  471;  T.  M.  Cooley,  Constitu- 
tional Limitations  (1903),  756-760;  T.  M.  Cooley,  Constitutional  Law 
(1898),  279-280;  G.  W.  McCrary,  American  Law  of  Elections  (4th  ed., 
1897);  F.  R.  Mechem,  PuUic  Offices  and  Officers  (1890),  §§  149-156;  C.  E. 
Merriam,  Primary  Elections  (1908),  38,  146;  C.  Z.  Lincoln,  Constitutional 
History  of  New  York  (1906),  III,  ch.  xii;  M.  Ostrogorski,  Democracy  atid 
Party  Organization  (1902),  II,  part  v,  ch.  iv,  §  4;  Registration  Laws  of  Mas- 
sachusetts {North  Am.  Rev.,  LXI,  250);  Registration  Reform  {Nineteenth 
Century,  LII,  836). 

162.  Problem  of  Increasing  the  Responsibility  of  the  Voters 
The  chief  function  of  the  electorate  is  to  express  popular 
will  in  the  choice  of  elective  officers,  and  in  no  other  coimtry  does 
the  opportunity  come  so  frequently.  Within  recent  years, 
elections  and  electoral  officers  have  multiplied,  while  the  means 
for  choosing  intelligently  have  grown  smaller;  hence  a  vigorous 
campaign  to  decrease  the  number  of  elective  officers  and  to 
lengthen  the  terms  of  office.  This  reduction  m  the  elective 
officers  in  state,  counties,  and  towns  as  urged  by  writers  is 
called  the  "Short  Ballot"  movement.  So  far  both  of  these 
reforms  tend  to  lessen  the  duties  of  voters,  but  a  parallel  move- 
ment increases  the  responsibilities  of  electors  by  calling  upon 
them  to  take  direct  part  in  legislation  and  admmistration. 
Evidently  the  duty  of  concentrating  popular  opinion  upon  the 
acts  of  governing  agents  by  initiative,  referendum,  recall,  and 
other  acts  of  the  voters  has  more  than  counterbalanced  any 
decrease  of  direct  influence  on  the  choice  of  officers.  With 
increased  provision  for  obtaining  full  knowledge  of  official  acts, 
with  better  means  of  locating  responsibility,  with  higher  demands 


§163]  Early  Election  Machinery  221 

of  efficiency  and  fidelity,  it  is  of  highest  importance  that  the 
integrity  of  electoral  functions  be  amply  protected  and  elec- 
toral action  facilitated  through  legal  provisions  securing:  (i) 
exact  knowledge  as  to  who  are  legally  entitled  to  vote;  (2)  full 
and  true  expression  of  popular  will  in  the  formation  of  issues 
and  the  nomination  of  candidates;  (3)  accuracy  in  recording 
the  unhampered  expression  of  electoral  judgment.  That  is, 
one  of  the  principal  subjects  of  the  citizens'  concern  must  be 
an  honest  ballot  and  purer  election  returns. 

163.  Simplicity  of  Early  Election  Machinery 
The  generally  accepted  principle  in  the  United  States  is  that 
every  elector  shall  have  one  vote,  and  one  only,  for  each  elec- 
tive office;  the  only  exception  is  where  a  voter  may  cumulate 
votes  so  as  to  secure  minority  representation.^  It  is  also  a 
principle  that  the  public  officials  charged  with  that  duty  shall 
see  to  it  that  the  right  of  each  qualified  voter  to  exercise  his 
allotted  share  in  elections  is  neither  denied  nor  abused;  officers 
are  also  charged  with  knowing  that  this  right  be  not  exercised 
by  a  person  not  legally  qualified. 

Under  the  simple  rural  and  urban  conditions  of  a  century  ago 
the  purity  of  the  ballot  was  easily  maintained;  all  electors  were 
personally  known  to  the  election  officers;  in  the  few  cases  where 
any  doubt  as  to  their  qualifications  existed,  the  simple  method 
of  challenge  and  affidavit  of  the  suspected  voter  on  election 
day  sufficed.  With  the  growth  of  population  and  the  frequent 
changes  in  residence,  especially  in  cities,  election  officers  and 
party  watchers  can  no  longer  be  personally  acquainted  with 
each  qualified  elector  even  of  a  small  election  district.  To 
settle  whether  a  man  is  a  legal  voter  becomes  a  problem  with 
which  the  simple  challenge  and  affidavit  system  on  election 
days  cannot  cope.  The  only  remedy  is  to  provide  a  means 
whereby  the  right  of  each  person  claiming  to  be  a  voter  can  be 
determined  prior  to  the  day  of  election;  experience  shows  that 
the  best  and  only  effective  method  is  a  system  of  registration. 
1  111.  Const.,  art.  IV,  sees.  7,  8. 


222  Registration  of  Voters        [§§164,165 

164.   Development  of  Registration 

In  many  states  three  distinct  steps  may  be  traced  in  the 
evolution  of  an  efficient  system  of  registration:  (i)  a  period  of 
opposition  to  any  system  of  registration;  (2)  the  recognition  of 
the  principle  of  registration  by  reqmring  some  authorized  person 
to  prepare  a  voting  list  before  elections;  (3)  the  adoption  of  a 
system  of  registration  by  pre\dous  personal  appearance  of  the 
elector  claiming  a  right  to  vote.  These  three  stages  are  well 
illustrated  by  the  history  of  registration  in  New  York  State. 

Prior  to  182 1,  no  attempt  was  made  to  require  proof  as  to 
qualifications  except  by  challenge  and  affidavit  of  suspected 
voters  on  election  day.  The  Constitutional  Convention  of  that 
year  adopted  the  pro\dsion  "that  laws  shall  be  made  for  ascer- 
taining by  proper  proofs  who  shall  be  entitled  to  the  right  of 
suffrage."  ^  The  convention  refused  to  include  a  provision  re- 
ported by  the  suffrage  committee  granting  the  legislature  power 
to  enact  a  registration  law.  Chief  Justice  Spencer  in  the  con- 
vention contended  that  registration  would  remove  corruption 
and  crime  at  elections.  Martin  Van  Buren  successfully  opposed 
the  provision  upon  the  ground  that  registration  would  consti- 
tute an  additional  suffrage  qualification.  Hence  it  was  the 
opinion  of  the  convention  that  "proper  proofs"  of  qualifica- 
tion of  voters  could  be  ascertained  on  election  day  through  the 
then  prevailing  system  of  challenge  and  affidavit  —  that  is  to 
say,  no  change  in  practice  resulted. 

166.  Early  New  York  Registration  Laws 

That  the  challenge  system  was  unsatisfactory  is  shown  by 
the  fact  that  only  sLx  years  later  Governor  De  Witt  Clinton, 
ignoring  the  debates  of  the  convention,  urged  the  enactment 
of  a  law  providing  for  a  registration  list  prior  to  the  day  of 
election,  this  list  to  be  accepted  by  the  officers  as  conclusive 
proof  of  the  right  to  exercise  the  elective  franchise.-     From 

^  Lincoln,  C.  Z.,  Constitutional  History  oj  New  York,  vol.  iii,  pp.  91-102. 
2  Lincoln,  C.  Z.,  Messages  oJ  the  Governors,  vol.  iii,  p.  158. 


I 


§165]  New  York  Laws  223 

1840  to  1842  such  a  registration  law  applied  to  New  York  City.^ 
A  general  registration  law  was  again  urged  by  Governor  King 
in  1857  upon  the  ground  "that  in  New  York  City,  and  measur- 
ably in  other  large  cities,  elections  are  not  pure,  and  often  not 
free,"  ^  and  in  the  following  year  he  again  emphasized  the 
same  point  in  his  annual  message,  as  follows:  "I  now  suggest, 
as  at  once  constitutional  and  effective,  the  enactment  of  a 
registry  law,  whereby  the  rights  of  every  elector  may  be  ascer- 
tained in  advance  of  the  heat  and  confusion  of  election  day, 
and  fraud,  simulation,  and  perjury  be  rendered  measurably 
unavailable  at  the  polls."  ^  As  a  result  of  this  agitation  a 
registration  law  was  enacted  in  1859,^  and  from  that  time  on 
the  principle  of  registration  has  been  recognized  and  its  appli- 
cation to  other  political  units  gradually  extended. 

This  law  of  1859  provided  that  a  list  of  persons  qualified 
and  entitled  to  vote  shall  be  completed  in  cities  on  the  last 
Wednesday  and  elsewhere  on  the  last  Tuesday  before  election, 
the  list  to  be  based  upon  the  poll  list  of  the  preceding  general 
election.  On  the  last  day  of  registration,  names  might  be  added 
and  erased.  This  list,  however,  was  still  not  conclusive  evidence, 
for  a  person  might  quaUfy  upon  oath  on  election  day. 

The  registration  system  of  1859  placed  an  almost  despotic 
power  in  the  hands  of  those  authorized  to  make  the  original 
list  in  the  large  cities,  and  to  correct  this  evil  the  principle  of 
registration  by  personal  appearance  was  adopted  in  1865.  This 
expedient  was  first  used  in  conjunction  with  and  supplementary 
to  the  poll  list;  persons  who  did  not  vote  at  the  preceding 
election,  those  who  moved  into  the  district  since  the  last  general 
election,  and  those  who  became  of  age  were  given  an  oppor- 
tunity to  register  by  personal  appearance.^  The  system  then 
adopted  continued  for  a  long  time  in  rural  communities  and  small 
cities.     In  1865  the  poll  list  of  the  last  general  election  as  an 

1  N.  Y.  Laws,  1840,  ch.  78. 

2  Lincoln,  C.  Z.,  Messages  of  the  Governors,  vol.  v,  p.  25. 
'  Lincoln,  C.  Z.,  Messages  of  the  Governors,  vol.  v,  p.  53. 
*  N.  Y.  Laws,  1859,  ch.  380. 

'  N.  Y.  Laws,  1865,  ch.  740. 


224 


Registration  of  Voters 


i66 


element  in  the  determination  of  the  right  to  vote  was  abolished 
in  New  York  City  and  Brooklyn  and  registration  by  personal 
appearance  only  was  adopted  for  the  first  time  in  these  two 
cities,  and  in  1880  the  same  method  was  extended  to  all  cities 
with  a  population  of  sixteen  thousand  and  over.^ 

166.  Principles  of  Effective  Registration 

Out  of  the  combined  experience  of  states  seeking  to  cor- 
rect practices  which  tended  to  impair  the  integrity  of  the 
electorate,  the  following  principles  have  been  established  as 
essentials: 

(i)  The  registration  laws  should  aim  as  much  as  possible  to 
reduce  the  difficulty  of  the  process  for  the  voter,  as  by  adopting 
the  smallest  political  unit,  such  as,  the  election  district,  as  the 
registration  unit,^  and  by  designating  several  days  for  registra- 
tion. The  average  number  of  days  prescribed  in  the  different 
states  is  from  three  to  four,  and  these  are  rarely  consecutive.^ 
In  many  states  at  least  one  of  the  days  selected  is  Saturday ,"* 
as  convenient  to  electors  having  a  half  holiday  and  to  persons 
who  return  home  at  the  week  end. 

(2)  The  general  election  officers  should  conduct  the  registra- 
tion. Wherever  the  election  district  is  selected  as  the  registra- 
tion unit,  practically  all  of  the  states  have  adopted  this  policy.^ 
The  aim  of  registration  is  to  preserve  the  purity  of  elections, 

1  N.  Y.  Laws,  1880,  ch.  576. 

2  Out  of  32  Northern  States  19  prescribe  the  election  district  as  the 
registration  unit,  2  prescribe  the  county,  6  the  town,  3  the  city,  and  4  the 
ward. 

'  lUinois  and  North  Dakota  designate  2  days;  Minnesota  and  Nebraska 
3  days;  New  York  and  Ohio  4  days;  Louisiana  2-3  days;  New  Jersey  3-4 
days;  Delaware  4-5  days;  and  Colorado,  Idaho,  Michigan,  and  Utah  8-9 
days.  Where  the  election  district  is  the  registration  unit,  the  number  of 
days  rarely  exceeds  four. 

*  In  Idaho  registration  is  held  only  on  nine  Saturdays;  in  Minnesota  one 
of  the  three  days  is  a  Saturday,  while  in  New  York  two  Saturdays  are  selected 
out  of  the  four  days  of  registration. 

^  The  Pennsylvania  Personal  Registration  Act  for  cities  prescribes 
separate  officers  for  the  registration,  because  in  many  districts  the  election 
boards  are  not  bi-partisan. 


§  i66]  Effective  Registration  225 

and  there  is  every  reason  why  the  election  officers,  who  are  at 
the  same  time  the  registration  officers,  can  more  readily  detect 
attempts  at  false  voting  by  means  of  the  registration  lists,  which 
they  themselves  prepared,  than  can  be  done  under  a  system 
where  registration  and  elections  are  conducted  by  different 
officers. 

(3)  An  original  registration  should  precede  each  general 
election.  Many  changes  in  the  electorate  of  each  election  dis- 
trict take  place  between  general  elections  through  the  change 
of  residence.  In  large  cities  the  removals  within  a  single  year 
often  equal  one-third  of  the  voters  registered,  and  in  states 
where  general  elections  come  only  once  in  two  years,  this  pro- 
portion is  increased.  Furthermore,  erasures  must  be  made  of 
those  electors  who  died,  and  the  names  of  those  who  have  just 
become  of  age  must  be  added.  In  states  where  municipal 
elections  are  not  held  at  the  November  or  general  election, 
the  registration  laws  should  provide  for  a  revision  of  the  original 
list  prior  to  the  municipal  election, 

(4)  The  original  registrations  should  be  made  only  upon 
the  personal  appearance  of  the  elector  before  the  registration 
officers.  In  large  cities  a  registration  board  cannot  prepare  a 
true  voting  list  from  the  poll  list  of  the  preceding  election, 
supplemented  by  their  own  knowledge  of  removals  and  new 
residents.  In  view  of  the  importance  of  the  object,  no  legit- 
imate objection  can  be  made  against  this  method,  even  though 
the  frequency  of  elections  will  often  necessitate  annual  personal 
appearance.  Under  this  system  every  applicant  will  be  closely 
scrutinized  by  the  board  of  registrars  and  by  the  party  watcher, 
who  may  demand  that  any  suspicious  applicant  shall  state  his 
qualifications  under  oath.^ 

(5)  Every  registration  law  should  provide  for  the  signature  of 
the  voter  on  the  registry  book  as  a  means  of  identification  on 

1  The  challenge  affidavit  is  exceedingly  severe  in  some  states,  for  it  con- 
tains answers  to  many  searching  questions  not  found  in  the  registration 
book.  See  especially  the  New  York  affidavit  (N.  Y.  Laws,  igoi.ch.  544, 
sec.  34,  sub-div.  6). 

16 


2  26  Registration  of  Voters  [§  i66 

election  day.  It  is  not  sufficient  that  the  registration  lists  be  free 
from  fictitious  names;  unless  the  election  officers  can  determine 
accurately  and  quickly  that  a  person  who  asks  for  a  ballot  under 
a  given  name  and  address  upon  the  register  is  the  same  person 
who  registered  as  such  on  registration  day,  the  purpose  of 
registration  is  in  a  large  measure  defeated.  Identification  by 
means  of  the  signature  of  the  applicant  on  registration  day 
compared  with  the  signature  on  election  day  has  been  found 
most  satisfactory.  The  application  of  this  test  is  limited,  be- 
cause only  a  few  states  have  the  writing  test  as  a  qualification 
for  suffrage,  and  for  this  reason  a  person  cannot  be  denied  the 
right  to  register  or  the  right  to  vote  when  the  applicant  claims 
inability  to  wTite  his  name.  It  is  also  obvious  that  the  persons 
who  desire  to  engage  in  corrupt  practices  will  not  hesitate  to 
claim  inability  to  sign  the  name. 

Several  devices  have  been  adopted  to  meet  this  condition. 
Some  registration  laws  make  provision  for  a  record  of  personal 
characteristics,  such  as  approximate  age,  height,  weight,  etc., 
either  as  part  of  the  registry'  book  or  of  the  challenge  affidavit.^ 
A  still  more  satisfactory  test  as  a  means  of  identification  was 
incorporated  in  the  Pennsylvania  Personal  Registration  Law 
of  1906,  and  two  years  later  as  an  amendment  of  the  New  York 
Registration  Act :  the  signature  of  the  applicant  on  the  registra- 
tion book  at  the  time  of  the  original  registration  is  necessary: 
in  case  the  applicant  claims  inability  to  write,  the  Pennsyl- 
vania Law  ^  requires  him  to  answer  the  questions  contained  in 
the  affidavit  required  of  voters  whose  right  to  register  is  ques- 
tioned; while  the  New  York  Law  contains  special  questions 
which  must  be  answered  on  registration  day  and  election  day 
by  the  person  who  for  any  reason  fails  to  sign  his  name.  Those 
questions  are  as  follows:  "What  is  your  name?  What  is  your 
father's  full  name?    What  is  your  mother's  full  name?    What  is 

1  The  Mar>-land  and  Pennsylvania  Laws  contain  provisions  for  personal 
description.  (Maryland,  Public  General  Laws,  February  17,  1904,  art.  S3', 
Pa.  Laws,  1906.) 

2  Pa.  Laws,  1906,  February  17,  sec.  7. 


I 


§  i66]  Effective  Registration  227 

your  occupation?  What  is  the  name  of  your  present  employer? 
Where  is  or  was  his  place  of  business?  Are  you  married  or 
single?  Where  did  you  actually  reside  immediately  prior  to 
taking  up  your  present  residence?  State  floor  and  character 
of  premises."  ^ 

It  is  believed  that  answers  to  definite  questions,  personal  in 
character,  will  in  most  cases  prevent  successful  impersona- 
tion on  election  day.  It  is  not  likely  that  such  questions 
can  be  answered  in  the  same  manner  on  registration  day 
and  election  day  by  more  than  one  party,  even  though  an 
attempt  be  made  to  coach  fraudulent  voters  to  enable  them 
to  pass  official  scrutiny.  The  combination  of  the  signa- 
ture system  and  the  affidavit  system  has  worked  satisfac- 
torily in  Pennsylvania  since  1906,  except  in  so  far  as  there 
has  been  interference  and  collusion  on  the  part  of  the  ofl&cers 
themselves  to  prevent  challenge  or  questions  being  raised;  and 
except  when  the  police  (representing  or  acting  under  instruc- 
tions from  representatives  of  the  party  in  power)  have  assumed 
to  mark  and  cast  the  ballots  of  foreigners  and  illiterate  persons 
under  the  legal  provision  for  assistance  at  the  polls.  This 
practice,  however,  is  not  in  any  manner  an  incident  or  result  of 
registration  laws.  The  extension  of  the  same  method  of  reg- 
istration of  voters  to  New  York  City  has  very  much  reduced 
fraudulent  voting  in  the  elections  since  its  adoption. 

1  N.  Y.  Laws,  1908,  ch.  521,  sec.  i. 


CHAPTER  XVII 
PRIMARY  ELECTIONS 

167.   References 

Bibliography:  List  of  References  on  Primary  Elections,  Particularly 
Direct  Primaries  (Government  Printing  Office,  1905);  C.  E.  Merriam, 
Primary  Elections  (1908),  Appendix  C. 

General  Works:  E.  C.  Meyer,  Nominating^ Systems  (1902);  C.  E. 
Merriam,  Primary  Elections  (1908),  chs.  v-viii;  Direct  Primary  Nomina- 
tions (Citizens'  Union,  N.  Y.,  1909);  The  New  York  Committee  Ap- 
pointed to  Investigate  Primary  Election  Laws  Report,  (Albany,  19 10); 
The  Connecticut  Commission  on  laws  relating  to  direct  primaries,  Report 
(Bridgeport,  1907  and  1909). 

The  Convention  System  Regulated  by  Law:  C.  E.  Merriam,  Pri- 
mary Elections  (1908),  chs.  i-iv;  E.  C.  Meyer,  Nominating  Systems  (1902), 
part  ii;  M.  Ostrogorski,  Democracy  and  Party  Organization  (1902),  II,  part 
V,  ch.  ix;  H.  A.  BuU,  The  New  York  Primary  Law  (Mich.  Pol.  Sci.  Assoc, 
Proceedings,  1905);  Nearing  and  Trowbridge,  Primary  Legislation  in  Penn- 
sylvania (Nat.  Munic.  League,  Proceedings,  1905). 

Special  Studies:  The  Direct  System. — ■  F.  P.  Ray,  The  Crawford  County 
System  (1888);  E.  L.  Hempstead,  Forty  Years  of  Direct  Primaries  in  Craw- 
ford Co.,  Pa.  (Mich.  Pol.  Sci.  Assoc,  Proceedings,  1905);  E.  Hempstead, 
The  Crawford  or  Direct  Primary  System  (Nat.  Munic.  League,  Proceedings, 
1901);  F.  E.  Horack,  Primary  Elections  in  Iowa  (Am.  Pol.  Sci.  Assoc,  Pro- 
ceedings, 1910,  175-186);  F.  S.  Reader,  History  of  Primary  Laws  in  Penn- 
sylvania (1906);  W.  C.  Jones,  The  Direct  Primary  in  Illinois  (Am.  Pol. 
Sci.  Assoc,  Proceedings,  1910,  328-339);  I.  Loeb,  Direct  Primaries  in  Mis- 
souri (Ibid.).  Direct  Primary  Problems.  —  C.  K.  Lush,  Primary  Elections 
and  Majority  Nominations  {Am.  Pol.  Sci.  Rev.,  II);  J.  D.  Verplang,  A  Prob- 
lem of  Primaries  (Am.  Acad,  of  Pol.  Sci.,  Annals,  V,  28) ;  Margaret  A.  Schaff- 
ner,  The  Test  of  Party  Affiliation  (Wis.  Comparative  Legislation  Bulletin 
No.  3,  1906);  E.  C.  Meyer,  Nominating  Systems  (1902),  part  iii,  chs.  iii,  ix; 
C.  E.  Merriam,  Primary  Elections  (1908),  35-40,  108-112,  133-176. 

168.  Uniform  Primary  Regulations 

Another  class  of  legal  provisions  aims  to  protect  the  elec- 
torate in  the  formulation  of  issues  and  the  nomination  of  candi- 
dates. As  has  been  pointed  out  above,  for  a  long  time  political 
parties  were  regarded  in  the  light  of  voluntary  organizations, 


§  169]  Simultaneous  Primaries  229 

with  which  the  states  could  not  meddle.  Within  the  last  dec- 
ade, however,  a  majority  of  the  states  have  placed  the  party 
primary  under  state  control. 

The  legal  control  of  nominating  machinery  follows  certain 
imiform  Unes;  practically  all  states  agree  that  the  primary 
election  should  be  conducted  by  the  regular  election  officials, 
and  that  the  votes  should  be  coimted  and  canvassed  by  the 
same  authorities  that  perform  those  functions  in  the  general 
election.  Any  wilful  neglect  or  corrupt  practice  on  the  part  of 
those  officers  is  punishable  in  the  same  manner  as  similar  prac- 
tices at  the  general  election. 

There  is  also  close  uniformity  in  the  laws  as  to  the  place  and 
time  of  holding  the  primary  elections.  With  the  single  excep- 
tion of  New  York  State,  where  each  primary  district  is  composed 
of  two  election  districts,^  the  laws  prescribe  that  each  election 
district  shall  constitute  one  primary  district,  and  all  agree 
that  the  primaries  shall  be  held  at  the  regular  polling  place. 
This  means  that  the  electors  of  all  parties  must  meet  at  the  same 
place  and  on  the  same  day  to  cast  their  primary  ballots. 

169.   Simultaneous  Primaries 

The  laws  further  provide  that  the  time  for  holding  the  pri- 
maries shall  be  the  same  throughout  the  entire  state  or  the 
political  unit  for  which  nominations  are  made.  The  reason 
for  this  provision  can  be  made  clear  by  an  illustration.  Prior 
to  the  enactment  of  the  Uniform  Primary  Act  of  Pennsylvania 
in  1906,  the  delegates  to  the  State  Convention  (which  was 
usually  held  in  June)  were  chosen  during  a  period  of  from  three 
to  four  months.  In  one  instance  the  delegates  from  Philadel- 
phia were  chosen  as  early  as  January,  five  months  before  the 
meeting  of  the  convention,  while  the  delegates  from  other  locali- 
ties were  chosen  only  a  few  days  prior  to  the  meeting  of  the 
convention.  During  this  long  period  of  time  the  candidates 
for  any  state  office,  in  their  effort  to  secure  the  election  of 
their  delegates,  moved  their  headquarters  of  activity  from 
*  New  York  Laws,  1899,  ch.  473,  sec.  4,  subdiv.  3. 


230  Primary  Elections  [§§170,171 

one  district  to  another,  and  when  the  success  of  rival  candi- 
dates was  finally  centred  on  the  outcome  of  a  few  districts,  all 
the  available  funds  poured  into  these  districts  to  debauch  the 
electorate.  This  practice  is  made  impossible  by  holding  the 
primaries  on  the  same  day  throughout  the  entire  state. 

170.  Form  of  Primary  Ballot 

Most  of  the  states  also  provided  that  the  primary  ballot, 
whether  for  the  election  of  delegates  or  for  the  direct  nomina- 
tion of  candidates,  shall  be  prepared  by  the  state,  which  pre- 
scribes the  general  form  of  the  ballot,  the  manner  in  which 
names  may  appear  on  it,  and  which,  ^vith  but  few  exceptions, 
assumes  the  expense  of  printing  the  ballots.  A  hotly  contested 
question  in  some  states  is  the  order  of  names  on  the  ballot, 
since  the  top  or  the  bottom  of  the  list  is  a  favorable  place. 

171.  Tests  of  Party  Affiliation 

State  legislation,  however,  differs  upon  several  important 
features,  especially:  (i)  the  basis  of  party  membership;  and  (2) 
the  methods  of  nomination.  The  usual  test  for  determining  a 
person's  right  to  participate  in  the  party  primary  is  a  declara- 
tion of  his  party  affiliation  under  oath.  This  was  the  method 
adopted  during  the  time  when  parties  were  free  from  state 
control,  and  in  many  cases  came  to  mean  that  the  only  people 
entitled  to  vote  in  a  primary  were  those  whom  the  party  leaders 
accepted  as  party  members.  Some  party  rules  pro\dded  that 
a  suspected  voter  should  declare  under  oath  that  he  had  sup- 
ported the  entire  ticket  of  the  party  at  the  preceding  election; 
others  required  an  appHcant  to  declare  that  he  would  support 
the  entire  party  ticket  to  be  nominated  at  the  following  elec- 
tion; still  others  prescribed  that  a  voter  must  subscribe  to  both 
of  these  statements.^  Most  of  the  states  which  have  brought 
the  primary  under  state  control  have  continued  this  challenge 
system   in   a   moderated   form.     The   Mmnesota   law   merely 

1  Republican  Rules  of  Lackawanna  Co.,  Pa.,  1905,  art.  3,  sec.  i;  Rep. 
Rules  of  Chester  Co.,  Pa.,  1905. 


§  172] 


Declaration  of  Affiliation 


231 


requires  the  voter  to  declare  that  he  supported  the  party  ticket 
generally  at  the  preceding  election  and  that  he  proposes  to 
aflaliate  with  the  party  at  the  ensuing  election.^  The  New 
Jersey  and  Pennsylvania  laws  are  more  specific  and  state  that 
a  voter  must  have  supported  more  than  one-half  of  the  candi- 
dates of  the  party  at  the  preceding  election  .- 

It  is  agreed  that  this  simple  method  of  determining  a  person's 
right  to  affiliate  with  a  party  does  not  prevent  members  of  one 
party  from  participating  in  the  primaries  of  another  party.' 
The  reason  is  obvious.  The  declaration  under  oath  is  one  the 
truth  or  falsity  of  which  cannot  be  proved  in  any  court.  The 
Australian  ballot  superseded  the  party  ballot  in  general  elec- 
tions, in  order  to  establish  the  secrecy  of  the  ballot,  and  it  is 
impossible  to  find  any  justification  for  basing  a  test  of  party 
membership  upon  the  revelation  of  this  secret.  Many  persons 
who  desire  to  enter  the  primary  of  another  party  will  not  be 
prevented  by  moral  scruples  from  taking  a  false  oath  relative 
to  a  ballot  cast  at  the  preceding  election,  and  some  people  would 
rather  not  enter  the  primary  than  disclose  their  vote. 

Attempts  to  solve  this  problem  have  given  rise  to  two  methods 
which  are  diametrically  opposed  to  each  other:  (i)  that  party 
affiliation  shall  be  made  a  matter  of  record  prior  to  the  primary 
election,  (2)  that  all  tests  of  party  membership  shall  be  abol- 
ished, save  that  when  a  voter  enters  the  booth  to  cast  his 
primary  ballot,  his  choice  shall  be  limited  to  the  candidates  of 
one  party.  The  most  conspicuous  example  of  fhe  former  is 
the  state  of  New  York  and  of  the  latter  the  state  of  Wisconsin. 


172.  Prior  Declaration  of  Party  Affiliation 

The  New  York  law  permits  a  voter  to  declare  his  party 
affiliation  immediately  after  registration  as  a  qualified  voter. 
He  is  given  a  party  enrolment  blank,  which  contains  the  circle 
and  emblem  of  all  parties.    The  voter  places  a  cross  in  the  circle 

^  Minn.  Laws,  1901,  April  10,  sec.  16. 

2  N.  J.  Laws,  1903,  April  14,  sec.  4;  Pa.  Laws,  1906,  February  17,  sec.  10. 

2  Mich.  Pol.  Sci.  Assoc,  Proceedings,  1905,  pp.  122,  123. 


232  Primary  Elections  [§  172 

of  the  party  with  which  he  desires  to  affihate  and  in  so  doing 
he  accepts  the  following  declaration  printed  on  the  enrolling 
blank:  "I  ...  do  solemnly  declare  .  .  .  that  I  am  in  general 
sympathy  with  the  principles  of  the  party  which  I  have  desig- 
nated by  my  mark  hereunder,  that  it  is  my  intention  to  support 
generally  at  the  next  general  election  .  .  .  the  nominees  of  the 
party  for  state  or  national  offices,  and  that  I  have  not  enrolled 
in  or  participated  in  any  primary  election  or  convention  of  any 
other  party  since  the  first  day  of  the  last  year."  ^  The  enrol- 
ment blank  is  then  placed  in  a  sealed  envelope  by  the  voter. 
These  envelopes  are  not  opened  until  after  the  ensuing  election 
and  constitute  the  party  affiliation  for  the  primary  elections  of 
the  ensuing  year. 

It  is  to  be  noted  that  under  this  plan  tests  of  party  member- 
ship are  lenient,  but  that  shifting  from  one  party  to  another 
can  only  be  accomplished  at  a  great  sacrffice.  A  person  cannot 
change  his  party  affiliation  unless  he  has  refrained  from  partici- 
pating in  the  primary  or  convention  of  his  former  party  in  the 
preceding  year.  Neither  can  he  vote  in  the  primary  election 
of  the  new  party  in  the  year  of  enrolment,  since  the  affiiliation 
becomes  effective  in  the  ensuing  year.  These  restrictions  are 
unnecessarily  severe,  and  other  states  which  have  adopted  the 
enrolment  system  have  accompUshed  the  same  results  by  less 
stringent  provisions. 

The  temptations  to  participate  in  the  primary  of  another 
party  are  usjially  limited  to  the  heat  of  the  campaign,  when 
candidates  offer  inducements  to  members  of  an  opposing  party 
or  when  members  of  one  party  are  tempted  to  assist  in  nominat- 
ing a  weak  candidate  of  the  opposing  party.  To  remedy  this 
evil  the  registration  law  of  Baltimore  pro\ides  a  column  on  the 
registration  books  for  party  affiliation.  The  voter  does  not 
have  to  declare  that  he  refrained  from  participating  in  the 
primary  of  another  party  in  the  preceding  year.  The  affiUa- 
tion  becomes  effective  in  the  ensuing  year,  but  at  an  intermedi- 
ate registration  the  voter  is  authorized  to  change  or  erase  his 
1  N.  Y.  Laws,  1899,  ch.  473,  sec.  3. 


§173]  Affiliation  at  Polls  233 

affiliation.^  The  Massachusetts  enrolment  law  permits  even 
a  greater  degree  of  freedom.  A  voter  may  change  his  enrol- 
ment at  any  time  during  the  year  by  presenting  a  request  for 
a  change  in  writing  to  the  election  officers,  which  change  takes 
effect  ninety  days  after  the  request  is  filed.^  Similar  methods 
of  party  enrolment  have  been  adopted  in  other  states. 

173.  Declaration  of  Affiliation  at  the  Polls 

It  is  claimed  by  some  that  the  system  of  party  enrolment 
entails  a  complex  and  expensive  system  of  records  with  a  ques- 
tionable value;  that  whenever  the  members  of  a  party  are  given 
freedom  of  action  in  their  own  primaries,  as  under  the  direct 
primary  system,  the  wholesale  rivalry  within  the  party  itself 
will  be  sufficient  to  prevent  the  practice  of  entering  the  pri- 
maries of  opposing  parties.  It  is  further  claimed  that  a  public 
record  of  party  affiliation  will  jeopardize  the  interests  of  many 
voters,  especially  those  in  the  employ  of  large  corporations. 
In  harmony  with  these  views  the  Wisconsin  Direct  Primary 
Law  abolishes  all  party  tests,  save  that  a  voter  must  limit  his 
choice  at  the  primary  to  the  candidates  of  one  party.  Before 
the  voter  enters  the  booth  he  is  given  the  ballots  of  all  parties, 
and  in  the  secrecy  of  the  booth  he  is  required  to  select  one 
ballot  and  thereon  indicate  his  choice.  He  returns  all  of  the 
immarked  ballots  and  those  are  placed  in  an  unmarked  ballot 
box.^  A  similar  system  was  adopted  in  the  Direct  Primary 
Law  of  Vigo  County,  Ind.,  and  in  Detroit,  Mich.  These  laws 
provided  for  a  single  primary  ballot  for  all  parties,  the  candi- 
dates of  the  parties  being  arranged  in  party  columns  as  on  the 
general  election  *  ballot.  The  voter  was  limited  in  his  choice 
to  one  column,  and  any  vote  cast  in  another  column  was  not 
counted.  Thus  a  voter  is  given  absolute  freedom  of  party 
affiliation  on  the  day  of  the  primary,  and  this  affiliation  can 
never  become  a  public  record. 

^  Md.  Laws,  1902,  April  8,  sec.  153. 

*  Mass.  Laws,  1903,  ch.  454,  sec.  11.  ^  Wis.  Laws,  1903,  ch.  451. 

*  Ind.  Laws,  1905,  p.  122;  Mich.  Laws,  1903,  p.  32. 


2  34  Primary  Elections  [§§174,175 

174.  Lack  of  Uniformity 

Similar  lack  of  uniformity  exists  in  laws  in  the  methods  of 
nomination  primaries.  These  systems  are  still  in  the  experi- 
mental stage,  and  for  this  reason  some  states  have  avoided 
provisions  for  a  uniform  system  of  nomination  in  their  primary 
laws.  Some  have  granted  to  the  party  authorities  or  party 
voters  the  power  to  prescribe  a  method.^  Others,  for  the 
purposes  of  experiment,  have  prescribed  by  law  a  method  of 
nomination  for  a  limited  area,  as  for  counties  or  cities  of  a 
specific  population.  In  contrast  with  these  cautious  steps 
many  states  have  recently  declared  boldly  for  a  uniform  system 
of  nomination  for  practically  all  elective  ofl&ces.  Several  states 
have  afl&rmed  the  convention  system;  others  have  adopted  the 
direct  primary  system;  still  others  have  evolved  a  combination 
of  the  convention  and  the  direct  vote. 

175.   Convention  System  Regulated  by  Law 

The  party  convention  system  was  recognized  by  the  primary 
laws  of  New  York  in  1899,^  by  the  laws  of  California  in  1901,' 
and  the  laws  of  New  Jersey  in  1903.*  These  laws  prescribed 
the  method  of  holding  the  primaries  and  the  conduct  of  the 
convention.  The  laws  of  New  Jersey  in  particular  aimed  to 
give  the  individual  voter  a  great  deal  of  power:  Ten  or  more 
legal  voters  might  file  petitions  for  delegates  and  have  the 
names  placed  upon  the  primary  ballot;^  those  candidates  for 
delegates  might  have  the  name  of  a  man  whom  they  favored 
for  election  at  the  convention  placed  upon  the  primary  ballot.^ 
When  Senator  Colby  made  his  fight  against  the  Essex  County 
(N.  J.)  Republican  machine,  his  delegates  were  designated  on 
the  ballot  as  Colby  delegates  in  all  the  districts.    The  New 

1  Massachusetts  Acts  and  Resolves,  June  22,  1903,  p.  478;  Ibid.,  May  25, 
1904,  p.  321;  Maryland  Public  General  Laws,  April  8,  1904. 

2  N.  Y.  Laws,  1898,  ch.  179;  1899,  ch.-473. 
'  Cal.  Statutes,  1901,  March  23,  p.  606. 

*  N.  J.  Laws,  1903,  April  14,  December  i,  p.  603. 

^  N.  J.,  Laws,  1903,  p.  603,  sec.  4.     .  ®  N.  J.  Laws,  1903,  sec.  5. 


§176]  Essentials  of  Primaries  235 

Jersey  primary  law  of  1903  has  been  so  amended  that  now 
practically  all  candidates  are  nominated  by  the  direct  vote  of 
the  people.  Even  a  more  radical  change  has  taken  place  in 
Cahfornia  where,  in  1908,  an  amendment  to  the  constitution 
authorized  the  legislature  to  enact  a  direct  primary  law;  and 
in  the  following  year  the  legislature  enacted  a  direct  primary 
law  affecting  the  nomination  of  all  officers,  including  a  direct 
vote  upon  United  States  senators.^  In  191 1  New  York  enacted 
a  direct  primary  law  applying  to  the  selection  of  all  candidates 
save  those  for  state  offices.  Hence  all  of  the  states  which 
have  experimented  with  the  regulated  convention  system  have 
now  abandoned  the  delegate  system  in  favor  of  direct  nomina- 
tions and  the  convention  system  is  plainly  doomed.  The 
people  have  come  to  think  that,  although  in  theory  the  conven- 
tion composed  of  a  small  body  of  men  representative  of  all 
districts  and  party  interests  is  an  ideal  body  to  make  nomina- 
tions, in  practice  the  system  is  subservient  to  special  interests 
which  control  the  party  committees,  who  in  turn  control 
the  primaries  and  thus  the  conventions.  The  new  method 
is  a  protest  against  such  a  doctrine  as  was  delivered  in 
the  Philadelphia  judicial  nominating  convention  of  1903. 
"Whether  irregular  or  otherwise,  the  fact  remains  that  Mr.  .  .  . 
was  the  unanimous  choice  of  the  City  Committee  and  that  the 
delegates  are  here  simply  to  ratify  and  reaffirm  said  choice, 
and  it  is  your  duty  to  return  to  your  constituents,  to  indelibly 
impress  upon  them  that  Mr.  ...  is  the  first,  last,  and  only 
choice  of  the  Republican  Party." 

176.  Essentials  of  the  Direct  Primary 
It  has  been  shown  in  the  preceding  chapter  that  the  direct 
primary  system  goes  back  to  Crawford  County,  Pa.,  in  1868, 
and  that  it  spread  rapidly  to  other  counties  and  was  accepted 
by  both  Republicans  and  Democrats  in  more  than  one-third 
of  the  counties  for  local  nominations  until  1906,  when  the 
state  enacted  the  uniform  direct  primary  law. 
1  Cal.  Statutes,  1909,  ch.  405. 


236  Primary  Elections  [§  176 

About  1900  began  an  active  movement  in  various  parts  of 
the  Union  for  a  primary  system  regulated  by  the  state  law. 
Some  states  introduced  the  regulated  direct  system  in  a  limited 
area,  such  as  one  coimty  or  city,  and  then  gradually  extended 
it  to  practically  all  nominations  for  elective  ojfices.  Other 
states,  such  as  Wisconsin  and  Oregon,  enacted  a  sweeping, 
direct  primary  law  without  previous  experiment  in  limited 
areas.  At  the  present  time  direct  nominations  for  the  selection 
of  practically  all  candidates  for  state  and  local  elective  offices 
have  been  established  by  law  in  twenty-seven  states.^  In  three 
other  states  this  system  extends  to  all  candidates  save  those 
seeking  the  state  offices,^  while  most  of  the  remaining  states 
have  formulated  a  direct  primary  system  subject  to  adoption 
by  the  party  committee  or  party  electors  of  any  political  unit. 

The  direct  primary  laws  of  the  various  states  agree  in  most 
essentials.  They  provide  that  the  primary  shall  be  conducted 
by  the  regular  election  officers  at  the  regular  polling  places  on 
a  specified  date,  which  is  the  same  throughout  the  state.  They 
also  prescribe  the  form  of  the  primary  ballot  and  the  manner 
of  placing  names  of  candidates  on  the  primary  ballot.  With 
but  few  exceptions  they  further  agree  that  the  entire  expense 
of  the  primary  election  shall  be  met  by  the  public.  None  of 
these  regulations  are  peculiar  to  the  direct  system,  save  the 
primary  ballot,  which  contains  the  names  of  candidates  for 
offices  in  the  place  of  delegates  and  in  some  states  the  names 
of  candidates  for  membership  on  the  party  committees.  Some 
states  go  so  far  as  to  limit  the  choice  on  primary  day  absolutely 
to  the  names  on  the  ballot,  while  in  other  states,  which  provide 
blank  space  for  individual  voting,  the  contest  is  practically 
limited  to  the  names  on  the  ballot.  Generally  speaking,  it 
may  be  said  that,  since  there  can  be  little  hope  for  the  success 

1  These  states  are  Arizona,  California,  Colorado,  Idaho,  Illinois,  Iowa, 
Kansas,  Louisiana,  Massachusetts,  Maine,  Michigan,  Minnesota,  Mis- 
sissippi, Missouri,  Nebraska,  New  Hampshire,  New  Jersey,  Nevada,  North 
Dakota,  Oklahoma,  Oregon,  South  Dakota,  Tennessee,  Texas,  Washington, 
Wisconsin,  Wyoming. 

*  Ohio,  New  York,  Pennsylvania. 


§177]  Multiplicity  of  Candidates  237 

of  a  nominee  whose  name  is  not  printed  thereon,  the  freedom 
of  the  electorate  to  nominate  is  limited  by  the  manner  in  which 
names  may  be  printed  upon  the  ballot. 

177.  Methods  of  Limiting  the  Number  of  Candidates 
Three  methods  have  been  adopted:  (i)  the  payment  of  a 
small  fee  by  the  candidates;  (2)  a  petition  in  behalf  of  the 
candidate  signed  by  a  small  percentage  of  party  electors;  (3) 
selection  by  the  party  committee,  used  in  conjunction  with 
the  petition  system. 

1.  The  aim  of  the  fee  system  is  to  eliminate  candidates  who 
might  otherwise  yield  to  the  pressure  of  a  few  friends,  or  with- 
out any  desire  to  make  a  real  contest  for  the  nomination,  or 
might  run  for  purposes  of  notoriety.  The  fee  is  usually  a 
specified  percentage  of  the  salary  attached  to  the  office  for  which 
a  person  is  a  candidate.^ 

2.  Most  of  the  primary  laws,  however,  provide  for  the  selec- 
tion of  candidates  for  the  primary  ballot  by  means  of  petition. 
Some  laws  specify  a  definite  number  of  signatures,  while  others 
prescribe  that  the  signatures  must  equal  a  specified  percentage 
of  the  party  electors.  In  order  that  the  demand  for  a  candidate 
shall  be  general  rather  than  local,  several  states  provide  that 
this  percentage  must  be  obtained  in  a  specified  number  of  dis- 
tricts or  counties  of  the  unit  of  nominations.- 

3.  A  third  method  permits  the  party  committee  to  select 
a  complete  ticket  for  offices  of  the  political  unit  which  the 
committee  represents;  this  ticket  to  be  designated  upon  the 
primary  ballot  as  the  committee's  choice.  These  selections 
must  be  published  some  time  before  the  primary  election,  so 
as  to  give  the  party  electors,  dissatisfied  with  any  of  the 
organization  candidates,  an  opportunity  to  petition  for  rival 
candidates.  This  method  was  presented  to  the  Republican 
Committee  of  Cook  County,  111.,  in  1902.^    In  1909  Governor 

^  Minn.  Laws,  iQoi,  sec.  4,  p.  297. 

2  Wis.  Laws,  IQ04,  p.  754,  sec.  5,  subdiv.  5. 

*  Merriam,  C  E.  Primary  Elections,  p.  131. 


238  Primary  Elections  [§  178 

Hughes  of  New  York  made  this  method  one  of  the  distinctive 
features  of  a  direct  primary  bill  which  was  defeated  by 
the  Legislature.  In  191 1,  however,  the  Legislature  enacted 
a  direct  primary  law  which  incorporated  this  system  of 
making  nominations  but  added  thereto  several  provisions 
not  contained  in  the  proposal  of  Governor  Hughes.  The 
committee's  nominees  are  all  printed  on  the  primary  ballot 
in  a  column  headed  by  the  party  emblem  and  a  circle  for 
straight  voting,  while  petition  candidates  appear  in  another 
column.  This  device  gives  the  committee's  nominees  a  decided 
advantage.^ 

178.   Relation  of  the  Primary  to  Parties 

Some  students  of  the  direct  primary  movement  feel  sure 
that  the  combined  committee  and  petition  system  will  solve 
many  of  the  direct  primary  problems.  One  of  the  chief 
objections  urged  against  the  direct  primary  plan  is  that 
it  will  disrupt  our  party  system,  by  producing  a  ticket  which 
fails  to  recognize  the  different  sections,  especially  the  equable 
distribution  of  candidates  between  country  and  city,  and  which 
fails  to  harmonize  the  jarring  interests  of  nationalities.  A 
party  committee  may  avoid  these  shortcomings  by  draft- 
ing a  ticket  which  will  recognize  the  claims  of  country  against 
city  and  the  claims  of  nationality.  So  far  as  the  committee 
present  really  fit  candidates,  there  is  a  strong  probability 
that  the  party  selections  will  be  indorsed  on  primary  day. 
If  they  put  up  a  poor  combination,  rival  candidates  will  surely 
appear  on  the  primary  ballot,  by  a  petition  of  the  party 
electors.  This  is  likely  to  cut  out  unfit  candidates,  while  the 
remaining  party-committee  nominees  will  be  chosen.  Such 
a  result  will  strengthen  the  party  in  the  ensuing  election;  and 
if  successful  the  party  will  be  strengthened  by  putting  effi- 
cient men  into  power;  while  the  defeat  of  unfit  candidates  at 
the  primary  will  exert  a  wholesome  influence  in  the  future. 
This  system,  it  is  suggested,  would  unify  the  workings  of  the 

1  The  bill  was  known  as  the  Hinman-Greene  Bill. 


§  179]  Plurality  Votes  239 

direct  primary  system,  and  at  the  same  time  make  the  exercise 
of  autocratic  power  impossible. 

179.  Plurality  Votes 
A  serious  objection  against  the  direct  primary  system  is 
that  several  candidates  are  likely  to  appear  on  the  primary 
ballot  for  the  same  ofl5ce,  and  the  plurality  candidate  may 
receive  less  than  a  majority  of  the  total  votes.     The  advocates 
of  the  direct  primary  system  have  recognized  this  objection. 
In  the  Southern  States  a  second  primary,  limited  to  the  two 
leading  candidates,  is  held  in  case  the  first  primary  does  not 
result  in  a  majority  vote.    The  Northern  States  have  refused 
to  incur  the  expense  and   time    involved    in    a    second   pri- 
mary, and  have  attempted  in  other  ways  to  solve  the  evil  of 
minority  nominations.     The  states  of  Washington,  Wisconsin, 
Minnesota,  Idaho,  and  North  Dakota  have  adopted  a  system 
whereby  the  voter  may  designate  his  first  and  second  choice 
on    the    primary   ballot.     In   case   no   candidate   receives    a 
majority  of   first  choice  votes,  in  Wisconsin  and  Minnesota, 
the  lowest  candidate  is  dropped  and  the  second  choice  votes  of 
those   who   favored   the   dropped   candidate    are    distributed 
among    the    remaining    candidates.     In    case    the   aggregate 
of    first    choice    votes    and    distributed    second    choice  votes 
does  not  produce  a  majority  result,  the  system  of  dropping 
the    lowest   candidate   and   distributing   second   choice  votes 
is  continued  until  some  candidate  receives  a  majority  vote. 
This  system  has  been  in  use  for  a  long  time  in  New  Zealand. 
It  was  also  extensively  adopted  by  the  counties  of  Pennsylvania 
for  the  instruction  of  delegates  to  conventions.     Idaho,  North 
Dakota  and  Washington  have  adopted  the  simple  procedure 
of   adding   a   candidate's  first  and  second  choice  votes  and 
abiding  by  the  result  whether  the  highest  candidate  receives  a 
majority  or  plurality  of  such  votes.^ 

Still  another  method  has  been  adopted  in  several  states  to 
solve  the  minority  nomination  problem;   viz.,  a  combination  of 
^  Am.  Review  of  Reviews,  Oct.  19 12. 


240  Primary  Elections  [§  180 

the  direct  and  convention  system.  The  names  of  both  candi- 
dates and  delegates  appear  upon  the  primary  ballot.  In  case 
the  primary  election  results  in  a  vote  for  the  leading  candidate 
which  is  less  than  from  thirty  to  forty  per  cent  of  the  total  vote 
cast,  the  selection  of  the  candidate  is  left  to  the  convention.^ 
The  objections  to  this  system  are  that  it  adds  the  additional 
expense  of  the  convention,  and  that  the  number  of  candidates 
will  be  increased  for  the  very  purpose  of  producing  a  minority 
choice  so  as  to  transfer  the  power  of  nomination  to  the 
convention. 

It  therefore  appears  that  all  of  the  methods  for  the  preven- 
tion of  a  plurality  choice  introduce  greater  evils  than  they  aim 
to  solve.  As  a  matter  of  fact,  the  evils  of  plurality  nominations 
have  been  exaggerated.  Investigations  concerning  the  actual 
workings  of  the  primary  system  show  that  although  the  number 
of  candidates  at  times  ranges  from  one  to  nine,  the  average 
number  of  candidates  ranges  from  two  to  three.^  The  adop- 
tion of  the  party  committee  system  will  still  further  tend  to 
reduce  to  a  minimum  the  actual  evil  of  plurality  party  nomina- 
tions. It  is  only  reasonable  to  suppose  that  the  organized 
opposition  to  the  committee's  selection  will  be  against  unfit 
candidates,  and  that  although  petition  candidates  may  appear 
in  opposition  to  the  satisfactory  candidates  of  the  committee, 
these  will  command  little  support.  Hence,  the  committee 
system  will  greatly  simplify  and  clarify  the  issues  at  the  pri- 
mary, and  will  make  the  probability  of  a  plurality  party  choice 
at  the  primary  even  less  than  at  the  general  election.  In  the 
few  instances  where  a  plurality  choice  may  occur,  the  voters  will 
accept  the  results  with  the  same  grace  as  they  accept  similar 
results  at  the  general  elections. 

180.   Ignoring  of  Party  Designations 

The  above  systems  of  nomination  recognize  only  party  nom- 
inations.   There  is  a  growing  tendency  to  aboHsh  all  party  rec- 

^  South  Dakota,  1907,  ch.  139;  Iowa  Laws,  1907,  ch.  51,  extra  session,  ch.  4. 
*  Merriam,  C.  E,  Primary  Elections,  p.  120. 


§  i8i]  Formulation  of  Platforms  241 

ognition  in  municipal  elections.  In  Des  Moines,  candidates  for 
municipal  ofl&ces  appear  upon  the  primary  ballots  without  any- 
party  designations.  The  two  leading  candidates  of  the  primary 
election  for  each  oflfice  are  placed  upon  the  general  election  bal- 
lot, thus  assuring  a  majority  choice  at  the  general  election.  In 
a  majority  of  cities  where  party  recognition  has  been  abolished, 
the  primary  election  is  done  away  with  entirely  and  the  can- 
didates appear  upon  the  general  election  ballot  by  petition  only. 
This  method  is  now  in  use  in  Boston  and  many  small  cities. 

181.  Formation  of  Platforms  imder  Direct  Primaries 

Another  limitation  charged  against  the  direct  primary  system 
is  that,  by  abolishing  the  convention  system,  it  fails  to  provide 
a  satisfactory  method  for  the  formulation  of  issues.  Several 
answers  are  given  to  this  objection.  The  primary  laws  provide 
for  the  formulation  of  issues  (i)  by  the  party  voters;  (2)  by 
the  candidates  prior  to  the  primaries;  (3)  by  a  convention  of 
the  candidates  after  the  primaries;  (4)  by  a  convention  of  can- 
didates and  members  of  the  party  committee  after  the  primary. 
In  the  state  of  Texas  ^  any  questioned  policy  must  be  sub- 
mitted to  the  voters  at  the  primary  upon  petition  of  ten  per 
cent  of  the  party  voters,  and  if  approved  by  a  majority,  this 
poUcy  becomes  a  part  of  the  party  platform.  In  the  Oregon 
law  provision  is  made  for  the  declaration  of  principles  by  the 
candidate  in  not  more  than  one  hundred  words,  the  substance 
of  which,  not  exceeding  twelve  words,  is  printed  upon  the 
primary  ballot. ^  The  method  of  formulating  the  issues  by  a 
meeting  of  candidates  was  first  adopted  by  the  state  of  Wis- 
consin ^  and  has  since  been  incorporated  in  the  primary  laws 
of  several  other  states.  In  the  states  of  Missouri,  Kansas,  and 
North  Dakota  the  State  Central  Committee  joins  with  the 
party  candidates  for  the  purpose  of  formulating  a  platform.* 

1  Texas  Laws,  1905,  ch.  177,  sec.  120. 

2  Ore.  Laws,  1904,  June  24,  sec.  12.       '  Wis.  Laws,  1904,  May  23,  p.  754. 
*  Mo.  Laws,  1907,  p.  263;  Kans.  Laws,  1908,  ch.  54;  N.  D.  Laws,  1907, 

zk.  109. 

17 


242 


Primary  Elections 


[\ 


The  objections  to  the  first  and  second  method  are  that  they 
still  further  compHcate  the  primary  ballot,  while  the  chief  objec- 
tion to  the  third  and  fourth  method  is  that  they  present  the 
anomaly  of  electing  candidates  at  the  primary  before  the 
issues  have  been  formulated. 


1 


CHAPTER  XVIII 
REGULATION  OF  POLITICAL  CAMPAIGNS 

182.  References 

Bibliography:  Select  List  of  References  on  Corrupt  Practices  in  Elections 
(Library  of  Congress,  1908);  Margaret  A.  Schaffner,  Corrupt  Practices  at 
Elections  (Wis.  Comparative  Legislation  Bulletin,  No.  3,  1906);  S.  G.  Lowrie, 
Corrupt  Practices  at  Elections  (Ibid.,  Bulletin  No.  23,  191 1). 

CoRRtJPT  Practices  Regulations  in  England:  H.  James,  Tfu;  British 
Corrupt  Practices  Act  (Forum,  XV,  1 29-141);  E.  A.  Jelf,  Corrupt  and 
Illegal  Practices  Prevention  Acts  (1905);  A.  L.  Lowell,  Government  of  England 
(1908)  I,  221-237;  E.  T.  Powell,  The  Essentials  of  Self-Government  (1909), 
ch.  viii. 

CoRRxrpT  Practices  Regulations  in  the  United  States:  P.  L.  Allen, 
Ballot  Laws  and  their  Workings  {Pol.  Sci.  Quart.,  XXI,  38-58);  L.  E.  Ayls- 
worth.  Corrupt  Practices  {Am.  Pol.  Sci.  Rev.,  Ill,  51);  F.  Belmont,  Publicity 
of  election  Expenditures  {North  Amer.  Rev.,  Feb.,  1905);  C.  J.  Bonaparte, 
Political  Corruptions  in  Maryland  {Forum,  XIII,  1-19);  J.  F.  Carr,  Cam- 
paign Funds  and  Scandals  {Outlook,  LXXXI,  549-554);  R-  H.  Dana,  The 
Corrupt  Practices  Act  —  the  Nominating  Machinery  —  and  the  Australian 
Ballot  System  of  Mass.  (N.  Y.  State  Bar.  Assoc,  Proceedings,  XXIX,  366- 
384;  Albany  Law  Journal,  LXVIII,  102-108;  American  Lawyer,  XIV, 
163-167);  H.  E.  Deming,  Corrupt  practices  and  electoral  methods  (Nat. 
Munic.  League,  Proceedings,  1906,  308-328);  G.  L.  Fox,  Corrupt  Practices 
and  Election  Laws  in  the  U.  S.  (Am.  Pol.  Sci.  Assoc,  Proceedings,  1906, 
171-186);  E.  L.  Godkin,  Problems  of  Modern  Detnocracy  (1896),  123-155; 
S.  G.  Lowrie,  Corrupt  Practices  in  Elections  (Wis.  Comparative  Legislation 
Bulletin  No.  23,  191 1);  Margaret  A.  Schaffner,  Corrupt  Practices  at  Elections 
(Ibid.,  No.  3,  1906);  C.  N.  Gregory,  The  Corrupt  Use  of  Money  in  Politics 
and  Laws  for  its  Prevention  (1893);  C.  N.  Gregory,  Political  Corruption  and 
English  and  American  Laws  for  its  Prevention  (1895). 

Reports  of  Commissions  and  Reform  Leagues:  Connecticut  Com- 
mission on  Election  Laws,  Report  (Bridgeport,  1907);  New  York  State  Legis- 
lature, Joint  Committee  on  Investigation  of  Life  Insurance,  Report  (10  vols., 
1905-1906),  3153-3154,  et  scq.;  Congressional  Committee  Reports  on  election 
of  President,  Vice-President,  and  Representatives  in  Cong. ;  Baltimore  Reform 
League,  Report  (1910). 

183.  Danger  of  Unrestricted  Campaigning 
Closely  related  to  the  provisions  for  obtaining  expression 
of  popular  will  in  the  nomination  of  candidates  and  the  formula- 


244  Regulation  of  Campaigns  [§  183 

tion  of  issues  are  the  legal  safeguards  thrown  around  campaigns 
and  elections.  The  political  campaign  is  the  means  or  occa- 
sion for  discussing  public  questions  immediately  in  issue  and 
for  considering  the  views  and  positions  of  candidates.  Quite 
contrary  to  the  spirit  of  this  electoral  institution,  the  psychology 
of  candidates  and  partisan  leaders  has  been  more  nearly  akin 
to  the  psychology  of  military  leaders  at  war,  though  the  meth- 
ods, the  means,  and  ends  of  these  campaigners  are  dissimilar. 
MiHtary  practice  has,  in  fact,  grown  into  harmony  with  ideals 
of  welfare.  Out  of  regard  for  the  high  purposes  of  the  state, 
mihtary  science  has  been  evolved;  mihtary  leadership  has 
become  a  recognized  branch  of  statesmanship;  a  definite 
military  profession  has  grown  up  with  its  established  code  of 
ethics;  campaigns  of  organized  violence  have  been  given  a 
definite  status  —  have  come  to  be  regulated  by  commonly 
estabUshed  rules  of  honesty  and  fairness  based  upon  broad 
social  welfare  ideals.  War,  however  regrettable,  has  its  place 
alongside  other  human  acti\ities,  directed  by  governments  for 
public  purposes. 

The  parallel  system  of  organized  effort  of  bodies  of  men  to 
estabHsh  power  over  other  bodies,  through  elections  and  suprem- 
acy in  the  state,  has  all  the  violence  of  war  and  httle  of  its 
discipline.  For  the  government  and  control  of  these  activities 
no  social  standards  have  been  estabUshed,  no  professional 
restrictions  and  almost  no  rules  of  conduct  obtain  which  are 
effective;  until  recently  httle  or  no  attempt  has  been  made  to 
throw  about  the  candidates  or  the  electorate  any  institutional 
safeguards,  and  such  laws  as  have  been  passed  have  been 
often  ignored. 

A  study  of  the  motives  of  the  electoral  campaigner  reveals 
that  the  prizes  of  electoral  campaigning  have  been  much  more 
tempting  than  the  prizes  of  war.  Great  inducements  have  been 
held  out  to  the  partisan  leader  to  use  any  method,  however 
questionable,  so  long  as  it  may  bring  success.  Successful 
military  leadership  brings  personal  renown,  but  the  electoral 
campaigner  has  an  opportunity  for  amassing  a  great  fortune 


§  184I  Indifference  of  Voters  245 

or  for  satisfying  his  love  of  power.  The  party  leader  or  boss 
has  had  before  him  not  only  the  glamour  and  acclaim  which 
goes  with  victory  in  a  popular  cause,  but  also  all  the  selfish 
advantage  known  to  private  enterprise  —  and  this,  too,  with- 
out any  of  the  restraints  of  business  law  and  morality. 

184.  Indifference  of  the  Voter 

In  general,  the  citizen  as  a  citizen  has  shown  himself  to  be 
both  inefficient  and  devoid  of  the  ideals  which  assist  honor- 
able political  appeals  to  the  electorate.  This  lack  of  citizen 
ideals  has  been  the  opportunity  of  the  party  boss.  It  has  been 
by  reason  of  this  fact  that  questionable  practices  have  been 
generally  adopted.  Contrast  with  other  governmental  activi- 
ties is  marked.  When  attempt  has  been  made  to  bribe  a  judge 
or  to  influence  a  jury,  the  person  making  such  attempt  has 
been  branded  as  belonging  to  the  same  criminal  class  as  traitors 
and  other  common  enemies  of  the  government.  When  such 
practice  has  succeeded,  both  the  court  which  had  been  cor- 
rupted and  the  person  who  had  made  the  overtures  have 
been  disfranchised,  disqualified  for  holding  office,  criminally 
prosecuted,  socially  ostracized. 

The  current  ideals  of  citizenship  are  necessarily  reflected 
in  the  attitude  of  electors.  In  the  respect  for  courts  of  law  the 
desire  for  fairness  and  efficiency  is  apparent.  The  principal 
business  of  courts  is  the  settlement  of  controversies  arising  out 
of  business  matters  of  immediate  private  interest;  every  party 
to  the  suit  is  interested  in  the  character  and  settlement  of  the 
suit.  How  different  has  been  the  temper  of  the  people  with 
respect  to  the  settlement  of  matters  which  come  before  the 
electorate,  which  is  really  a  tribunal  composed  of  representa- 
tives of  the  people  legally  designated  and  charged  with  the 
selection  of  judges,  legislators,  and  executives,  and  with 
determining  the  largest  and  most  important  issues  per- 
taining to  the  welfare  of  the  state!  The  logical  conclusion 
is  that  the  citizen  has  not  taken  the  electoral  function 
seriously  and  does  not  possess  the  ideals  necessary  to  make 


246  Regulation  of  Campaigns  [§  185 

corrupt    practices    destructive    to    the    party    or    candidate 
employing   them. 

185.  Placing  Issues  before  the  Voters 

Again,  following  the  law  of  advantage  and  the  evolutionary 
principle  of  adaptation  which  determine  social  as  well  as  physical 
survivals,  both  campaign  managers  and  candidates  for  office  have 
conspired  to  misrepresent  issues  and  to  influence  the  electoral 
jury  unduly.  Yielding  to  the  overtures  and  blandishments 
of  those  who  would  corrupt  the  electorate  has  been  commonly 
excused  on  the  ground  that  the  acts  of  parties  interested  in 
political  adjustment  are  not  to  be  judged  by  the  same  rule 
as  acts  of  litigants  before  a  court  of  law.  Hence  corrupt  prac- 
tices in  campaigning  have  not  been  regarded,  as  they  should  be, 
as  a  partial  overthrow  of  the  government;  the  voters  have 
not  until  recently,  at  least,  realized  that  such  practices  in  cam- 
paigning are  anti-social.  Although  any  organization  or  overt 
act  looking  toward  violent  disruption  or  disabling  of  any  of  the 
organs  or  functions  of  government  has  been  sufficient  at  all 
times  to  call  into  action  the  combined  resources  both  of  citizen- 
ship and  government,  conspiracy  to  overthrow  that  part  of  the 
government  known  as  the  electorate  has  aroused  no  emotion 
that  suggests  that  the  people  realize  the  vital  importance  to 
the  community  of  electoral  trusteeship  or  even  that  the 
electorate  is  an  intrinsic  part  of  the  government.  On  most 
occasions  the  prevailing  attitude  has  been  to  regard  the  cam- 
paign as  a  form  of  amusement  provided  for  the  public  by  party 
organization  free  of  charge. 

The  danger  to  the  state  from  corrupt  practices  has  not  been 
the  power  of  the  party  boss,  who,  whatever  his  motive,  acted 
with  intelligence  in  availing  himself  of  the  conditions  which 
make  for  the  success  of  his  enterprise.  The  great  danger  to 
the  state  has  been  the  attitude  of  the  popular  mind,  which  has 
been  indifferent  to  the  electoral  function,  even  to  the  extent 
of  making  the  success  of  those  who  have  subverted  it  the  sub- 
ject and  the  occasion  for  popular  hilarity. 


§  i86]  Electoral  Courts  247 

186.  Courts  of  Justice  and  Electoral  Courts 

One  of  the  most  exacting  requirements  of  courts,  legislatures, 
and  other  well-established  tribunals  and  assemblies  has  been 
compHance  with  certain  definite  rules  for  eliciting  facts  and  dis- 
cussing issues.  These  rules  are  made  in  most  cases  long  before 
the  controversy  arises.  They  are  intended  not  only  to  further 
the  ends  of  the  institution  maintaining  the  court  or  assembly, 
but  to  place  contestants  or  their  agents  on  a  footing  of  equality. 
Through  statutes,  ordinances,  rules,  and  administrative  pro- 
cedure each  person  who  has  had  a  cause  to  be  heard  has 
been  able  to  present  this  in  a  manner  to  give  the  state,  city, 
or  the  corporation  the  benefit  of  full  discussion  and  of 
counsel.  In  the  contemplation  of  law  an  attorney  is  an 
adviser  to  the  court;  on  him  the  judge  must  depend  to 
bring  out  the  evidence  and  brief  the  law  on  which  his 
client  relies  for  favorable  decision.  One  aspect  of  litigation, 
however,  has  been  neglected.  Even  with  all  the  rules  and 
regulations  looking  toward  equity  and  justice  in  the  courts, 
there  has  been  great  inequality  in  fact,  and  this  has  been  due 
to  inequality  of  funds  on  the  part  of  litigants.  To  this  defect 
citizenship  is  becoming  aroused.  To  cure  it  the  people  are 
urging  the  desirability  of  legal  bureaus  supported  by  the  state, 
thereby  providing  to  litigants  facilities  for  having  their  issues 
presented  and  making  the  cost  a  common  charge  on  the  state. 

The  candidate  and  campaigner  in  an  electoral  contest  should 
be  in  much  the  same  relation  to  the  electoral  court  as  is  the 
attorney  at  law  to  the  law  court.  The  cause  to  be  presented 
by  him  is  of  broad  social  economic  or  political  significance; 
his  client  is  the  people.  It  is  for  the  state  to  consider  by  what 
rules  and  by  what  proceedings  causes  are  to  be  heard  by  the 
electorate,  and  how  those  representing  these  causes  shall  be 
regulated.  One  of  the  first  conditions  producing  inequality 
in  the  discussion  of  issues  before  the  electorate  has  been  the 
difference  in  the  amounts  of  funds  available  for  parties  and 
candidates.     As   in   law,    although   the   campaigner   may   be 


248  Regulation  of  Campaigns      [§§  187, 188 

altruistically  pleading  a  public  cause,  no  public  means  is  sup- 
plied, and  the  candidate  or  his  party  must  work  at  private 
expense.  Hence  even  a  fair  hearing  on  the  issues  presented 
depends  in  large  measure  on  money  collected  by  private  in- 
terests for  public  campaign  purposes. 

187.  Use  of  Money  in  Elections 

This  difference  in  means  is  sometimes  very  great:  one  candi- 
date or  party  leader  may  have  millions  at  his  disposal,  while 
another  will  be  not  only  without  a  purse,  but  also  without  a 
friendly  press.  Under  such  conditions  the  result  has  been  that 
one  side  of  an  issue  or  cause  has  been  amply  and  ably  presented 
to  the  electoral  court,  while  the  other  has  been  without  a  fair 
opportunity  to  be  heard.  The  loser  is  the  state.  Since  the 
advocate  is  not  permitted  to  present  his  case  for  popular  con- 
sideration, still  less  to  meet  the  misrepresentations  artfully 
circulated  by  those  interested  in  obtaining  a  contrary  verdict, 
decisions  are  made  by  the  electorate  in  ignorance. 

188.   Contributions  by  Corporations 

When  the  party  leader  or  the  candidate  has  been  well  estab- 
lished—  i.e.,  when  the  party  or  the  leader  has  provided,  at 
private  expense,  a  means  and  mechanism  for  advocating  a 
cause  to  advantage  —  the  abUity  to  obtain  further  means  often 
depends  on  ability  to  serve  or  to  harm  vested  interests  and 
corporate  privileges.  Such  interests  being  the  victims  of 
attack  naturally  open  their  coffers  to  levies  of  partisan  tribute 
—  a  species  of  blackmail  to  which  they  yield  as  a  temporary 
way  out  of  the  difficulties  caused  by  lack  of  protection  against 
the  acts  or  threats  of  those  in  possession  of  the  offices  of  the 
state. 

A  candidate  who  stands  as  nominee  of  one  of  the  two 
great  parties  may  profit  by  all  arts  and  devices  for  corrupting 
and  disfranchising  the  electorate.  This  does  not  mean  that 
the  candidate  must  have  knowledge  of  these  things.  Party 
organization  enables  the  candidate  to  discuss  issues  and  to  de- 


§  189]  Corrupt  Practice  Legislation  249 

dare  his  civic  piety  and  innocence.  Every  arrangement  with 
representatives  of  corporations  and  other  powerful  persons 
and  combinations  whose  business  interests  to  a  greater  or  less 
extent  depend  on  possible  legislative  or  administrative  action 
is  consummated  by  party  agents :  by  them  the  vested  interests 
are  in  a  way  insured  through  their  more  or  less  liberal  contribu- 
tions to  campaign  funds.  Although  there  may  have  been  no 
direct  contact  with  and  no  understanding  with  the  candidate, 
such  contributions  are  usually  secured  by  a  distinct  under- 
standing with  some  one  that  the  fimds  will  be  used  for  the 
nomination  and  election  of  candidates  who  will  enact  the  laws 
or  secure  the  administrative  results  desired  by  the  contributors. 
Party  organization  is  expensive;  traffic  of  this  kind  to  be 
profitable  is  necessarily  costly  to  those  who  engage  in  it,  since 
the  business  arrangement  must  be  carried  to  successful  issue  or 
future  contributions  will  be  impaired.  /  Control  over  material 
means  for  conducting  a  campaign,  as  against  candidates  who 
have  not  the  means,  therefore,  has  come  to  be  regarded  as  one 
of  the  most  important  elements  of  electoral  control.  Hence 
the  recent  legislation  to  safeguard  the  electorate  and  to  place 
candidates  on  an  equaHty  in  the  discussion  of  issues  is  of  great 
significance. 

189.  Legislation  Against  Corrupt  Practices 

The  term  "corrupt  practice"  as  applied  to  poHtical  cam- 
paigns and  elections  has  a  limited  meaning:  it  has  to  do  with 
those  abuses  which  result  from  the  contribution  and  expend- 
iture of  money  or  other  valuable  considerations  for  the  purpose 
of  influencing  the  nomination  and  election  of  candidates  for 
pubUc  office.^ 

Since  1906  more  than  a  dozen  states  have  enacted  important 
corrupt  practice  acts,  the  most  comprehensive  of  which  follow 
rather  closely  the  provisions  of  the  English  Corrupt  Practices 
Act  in  the  following  provisions:  (i)  elaborate  definitions  of 
corrupt  and  illegal  practices;    (2)  expenditure  of  money  only 

*  Conn.  Pub.  Laws,  1909,  sec.  i,  p.  1205;  Md.  Laws,  1908,  ch.  122,  sec.  i. 


250  Regulation  of  Campaigns  [§  190 

by  duly  authorized  agents;  (3)  limitation  of  expenditures  for 
all  purposes;  (4)  sworn  statements  of  expenditures  by  candidates 
or  their  agents  and  the  publication  of  these  statements  in  a  public 
document;  (5)  creation  of  an  election  court  consisting  of  two 
judges  who  inquire  into  alleged  violations  of  the  law  upon  the 
petition  of  one  or  more  voters. 

The  most  important  provisions  of  the  state  corrupt  practice 
laws  may  be  analyzed  as  follows:  (i)  poHtical  committees  and 
their  officers,  such  as  treasurer  and  poHtical  agent,  are  defined; 
(2)  responsibiUty  for  control  over  contributions  as  well  as 
expenditures  is  estabhshed  and  is  located  by  making  the  treas- 
urer, political  agent,  or  candidate  the  responsible  party  for 
receipts  and  expenditures;  (3)  Umitations  are  placed  upon  con- 
tributions; (4)  Hmitations  are  placed  on  expenditures;  (5) 
provision  is  made  for  sworn  itemized  reports  of  receipts  and 
expenditures  and  for  filing  and  preserving  them  as  pubhc 
documents;  (6)  instead  of  a  special  election  court  as  in  England, 
the  regular  courts  are  given  authority  to  review  alleged  viola- 
tions of  the  provisions,  the  penalties  for  such  violations  being 
fixed  by  the  laws. 

190.  Legislation  on  Political  Committees  and  Treasurers 

Most  of  the  states  define  the  character  of  a  poHtical  committee 
and  provide  for  the  election  of  a  treasurer  and  political  agent. 
Provision  is  also  made  for  the  certification  of  the  duly  elected 
treasurer  and  duly  appointed  agent  of  the  candidate  with  the 
Secretary  of  State  in  case  of  state  elections  and  with  the  coimty, 
town,  or  city  officers  in  case  of  local  elections.  Take,  for 
instance,  the  Connecticut  law: 

"The  term  'poHtical  committee'  shall  include  every  com- 
mittee or  combination  of  three  or  more  persons  to  aid  or  pro- 
mote the  success  or  defeat  of  any  poHtical  party  or  principle 
in  any  election,  or  to  aid  or  take  part  in  the  nomination  or 
election  of  any  candidate  for  public  office. 

"The  term  'treasurer'  shaU  include  aU  persons  appointed 
by  any  poHtical  committee  to  receive  or  disburse  money  to  aid 


§  190]  Committees  and  Treasurers  251 

or  promote  the  success  or  defeat  of  such  party,  principle,  or 
candidate. 

"The  term  'poHtical  agent'  shall  include  all  persons  appointed 
by  any  candidate,  before  any  such  election,  caucus,  or  primary 
election,  to  assist  him  in  his  candidacy. 

"No  person  shall  act  as  any  such  treasurer  or  political  agent 
imless  after  his  appointment  and  before  the  caucus,  primar}^, 
or  election,  a  writing  designating  him  as  such  treasurer  or 
political  agent  shall  be  filed  with  the  Secretary  of  State,  except 
that  in  case  the  duties  of  such  treasurer  or  political  agent  shall 
relate  to  any  town,  city,  ward,  borough,  or  school  district  ex- 
clusively, or  to  any  caucus,  or  primary  election  preliminary 
thereto,  such  writing  shall  be  filed  with  the  town  clerk  of  the 
towm  within  which  such  candidate  resides  instead  of  with 
the  Secretary  of  State.  Every  such  writing  shall  designate  the 
particular  period,  election,  caucus,  or  primary  election  during 
which  such  treasurer  or  poHtical  agent  shall  continue."  ^  These 
elected  or  appointed  treasurers  and  agents  are  the  responsible 
parties  for  all  contributions  and  expenditures  with  but  slight 
exceptions.    To  quote  again  from  the  Connecticut  law: 

"Any  person  nominated  as  a  candidate  for  public  ofiice,  or 
a  candidate  for  such  nomination,  may  make  a  voluntary  con- 
tribution to  any  treasurer  or  political  agent  for  any  of  the  pur- 
poses permitted  by  this  act ;  provided,  however,  that  no  person 
other  than  such  candidate  shall,  to  promote  the  success  or  defeat 
of  any  political  party  or  principle,  or  any  candidate  for  public 
office,  or  of  any  candidate  for  nomination,  within  six  months 
prior  to  any  such  election,  make  any  contribution  of  money  or 
property,  or  incur  any  liability,  or  promise  any  valuable  thing, 
to  any  person  other  than  to  the  treasurer  or  political  agent. ^ 

"No  person  other  than  a  treasurer  or  political  agent  shall 
pay  any  of  the  expenses  of  any  election,  caucus,  or  primary 
election,  except  that  the  candidate  may  pay  his  own  expenses 
for  postage,  telegrams,  telephoning,  stationery,  printing,  the 

^  Conn.  Pub.  Laws,  1909,  ch.  253,  sec.  2. 
*  Conn.  Pub.  Laws,  1909,  ch.  253,  sec.  3. 


252  Regulation  of  Campaigns  [§  191 

advertising  in  or  distribution  of  newspapers  being  excepted, 
expressage  and  travelling;  but  the  provisions  of  this  section  shall 
not  apply  to  non-partisan  elections  and  ante-election  expenses 
paid  out  of  the  public  moneys  of  the  state,  or  of  any  town,  city, 
or  municipality."  ^ 

191.  Sources  of  Contributions 

It  is  usually  provided  that  the  contribution  must  be  recorded 
imder  the  name  of  the  actual  contributor.  Specific  penalties 
are  prescribed  for  any  attempt  to  have  money  recorded  under 
an  assumed  name  or  for  a  treasurer  or  pohtical  agent  knowingly 
to  record  the  contribution  under  an  assumed  name. 

Furthermore,  from  certain  sources  contributions  have  been 
absolutely  forbidden,  so  as  to  bring  about  the  curtaihnent  of 
the  influence  of  corporations  over  nominations  and  elections. 
Since  1906  at  least  twelve  states  have  forbidden  corporations 
organized  under  national  or  state  laws  from  contributing  to  state 
elections.  In  1906  the  legislature  of  Peimsylvania,  convened 
in  extra  session,  prohibited  contributions  from  domestic  or 
foreign  corporations.^  In  the  following  year  three  states  — 
North  Dakota,  New  Jersey,  and  Texas  —  adopted  similar 
restrictions.^  The  Texas  law  pro\ddes  that  national  banks  or 
any  corporations  incorporated  by  Congress,  by  the  state  legis- 
lature of  Texas,  or  foreign  corporations  doing  business  in  the 
state,  shall  not  be  allowed  to  make  campaign  contributions.* 
North  Dakota  added  the  salutary  provision  that  the  corpora- 
tions shall  be  held  responsible  for  the  acts  of  their  agents.^ 
During  the  same  year  the  federal  government  enacted  a  law 
making  it  "unlawful  for  any  national  bank,  or  any  corporation 
organized  by  authority  of  any  laws  of  Congress,  to  make  a  money 
contribution  in  connection  with  any  election  to  any  political 
office."    The  law  also  made  it  unlawful  "for  any  corporation 

1  C6nn.  Pub.  Laws,  1909,  ch.  255,  sec.  4. 

2  Pa.  Laws,  1906,  extra' sess.,  pp.  78-83,  sec.  3. 

3  N.  J.  Laws,  1907,  ch.  34,  sees,  i  and  2. 

*  Tex.  General  Laws,  1907,  p.  169. 

*  N.  D.  Laws,  1907,  p.  83. 


§192]  Limitation  of  Expenditures  253 

whatever  to  make  a  money  contribution  in  connection  with  any 
election  at  which  Presidential  and  Vice-Presidential  Electors  or 
a  Representative  in  Congress  is  to  be  voted  for,  or  any  election 
by  any  state  legislature  of  a  United  States  Senator."  ^ 

In  the  following  year  (1908)  Maryland  ^  and  Ohio  ^  fell  into 
line.  The  Maryland  act  is  noteworthy  for  its  comprehensive- 
ness. It  makes  it  unlawful  for  any  corporation  of  Maryland, 
or  any  state,  territory,  or  District  of  Columbia,  or  United  States 
by  itself  or  through  any  officer,  agent,  or  employee  to  give,  con- 
tribute, furnish,  lend,  or  promise  any  money,  property,  trans- 
portation, means,  or  aid  to  a  poUtical  party  or  candidate  or 
any  political  agent  or  committee,  or  to  a  treasurer  of  a  political 
committee.  Anyone  violating  these  restrictions  is  subject  to 
a  fine  of  not  more  than  five  hundred  dollars  and  imprisonment 
for  not  more  than  three  years."*  In  1909  Oregon^  and  Connect- 
icut ^  enacted  similar  restrictions. 

192.  Limitations  on  Objects  of  Expenditure 

Of  even  greater  significance  are  the  provisions  of  these  laws 
relating  to  expenditures.  Most  of  the  acts  enumerate  the 
lawful  objects  of  expenditure  and  limit  the  total  expenditures 
for  the  election  of  a  candidate.  The  Maryland  law,  which  may 
be  taken  as  typical  of  other  acts,  allows  a  treasurer  of  a  polit- 
ical committee  or  an  agent ^  to  spend  money  for:  (c)  hiring  of 
halls  and  music  for  the  conventions,  public  meetings,  and  public 
primaries,  and  for  advertising  the  same;  (b)  printing  and  cir- 
culating political  articles,  circulars,  pamphlets,  and  books; 
(c)  printing  and  distributing  sample  or  specimen  ballots,  and 
instructions  to  voters;  (d)  renting  rooms  and  headquarters  to 
be  used  by  political  committees;    (e)  compensation  for  clerks, 

*  U.  S.  St.  at  L.,  59th  Cong.  (1905-1907),  vol.  xxxiv,  pt.  i. 

*  Md.  Laws,  1908,  ch.  122, 

*  Ohio  Laws,  1908,  p.  23. 

*  Md.  Laws,  1908,  ch.  122,  sec.  172. 

^  Ore.  Laws,  1909,  sees.  24,  25,  pp.  15-38. 

*  Conn.  Pub.  Laws,  1909,  sec.  4,  p.  1205. 
^  Md.  Laws  (1908),  ch.  122,  sec.  166. 


254  Regulation  of  Campaigns  [§  193 

stenographers,  typewriters,  and  other  assistants  employed  in 
committee  rooms  —  also  challengers,  watchers,  and  messengers 
employed  in  registration  rooms,  in  voting  rooms,  and  at  the 
polls;  (/)  travelling  and  other  legitimate  expenses  of  political 
agents,  committees,  and  public  speakers;  (g)  necessary  postage, 
telegrams,  telephoning,  printing  expenses,  and  conveyance 
charges  for  carrying  persons  to  and  from  polls  or  to  and  from 
ofi5ce  of  registration;  {h)  cost  and  expense  of  messages  sent  by 
chairman  of  central  committee  or  any  political  party  in  party 
interest  and  also  expenses  of  persons  summoned  by  the  same; 
{i)  expense  of  meeting  of  committees. 

The  New  Jersey  law,  on  the  other  hand,  adopts  the  reverse 
method  and  enumerates  certain  unlawful  expenditures:  ^  (o) 
entertainment  for  the  purpose  of  influencing  voters  at  elec- 
tions; {h)  fitting  up  any  clubroom  for  social  or  recreation 
purposes  or  uniforms  for  any  organized  club;  (c)  articles  in 
newspapers  and  magazines  aiming  to  influence  any  voter. 
This  limitation  does  not  apply  to  paid  advertisements  when 
the  person  paying  for  the  same  subscribes  his  name. 

193.   Limitations  on  Maximum  Expenditure 

Within  the  last  three  years  several  states  have  set  a  limit 
to  the  amount  of  money  which  may  be  spent  in  behalf  of  any 
candidate  even  for  lawful  purposes.  Three  methods  have  been 
adopted  for  determining  these  maximum  expenditures:  thus, 
the  New  York  law  specifies  the  amount  for  the  different  grades 
of  offices,  as  follows:  Candidates  for  Governor,  $10,000;  for 
state  officers  not  judicial,  $6000;  for  Representatives  in  Con- 
gress not  Presidential  Electors,  $4000;  for  State  Senators, 
$2000;   for  Assemblymen,  $1000;   for  local  officers,  $500.^ 

California  and  Oregon,  on  the  other  hand,  relate  the  maxi- 
mum expenditure  to  the  salary  attached  to  the  office.  In  the 
Oregon  law  the  expenses  for  nomination  shall  not  exceed  fifteen 
per  cent  of  one  year's  salary  attached  to  office  to  be  filled;  and 

^  N.  J.  Laws,  1906,  ch.  208,  sec.  2. 

*  N.  Y.  Consolidated  Laws,  1909,   IV,  sec.  781. 


§  i94l  Statements  of  Expenditure  255 

expenses  for  election  by  the  candidates  successful  in  the  nomi- 
nation shall  not  exceed  ten  per  cent  of  one  year's  salary  of  said 
oflace.^  The  California  law  takes  into  account  the  length  of 
the  term  attached  to  the  office.  It  limits  the  expenditure  to  a 
percentage  of  one  year's  salary  as  follows:  candidates  for  an 
office  of  a  term  of  one  year,  not  more  than  five  per  cent;  for 
offices  of  more  than  one  year  and  not  exceeding  two  years, 
ten  per  cent;  for  offices  of  more  than  two  years  and  not  exceed- 
ing three  years,  fifteen  per  cent;  for  offices  of  more  than  three 
years  and  not  exceedmg  four  years,  twenty  per  cent;  and  for 
offices  of  more  than  four  years,  ten  per  cent.^ 

The  Maryland  law  adopts  the  English  practice  and  bases  the 
maximum  expenditure  upon  the  number  of  voters  who  are 
entitled  to  cast  their  ballots  for  the  office.  The  payments, 
expenditures,  promises,  and  liabilities  of  any  candidate  before 
nomination  or  election  shall  not  exceed  in  the  whole  $25  for 
each  1000  voters  (or  major  portion  thereof)  up  to  50,000, 
and  $10  for  each  1000  voters  (or  major  portion  thereof)  in  ex- 
cess of  50,000  of  the  registered  voters  qualified  to  vote  for  the 

office.^ 

194.  Filing  of  Statements  of  Expenditiire 

All  of  the  state  laws  referred  to  provide  for  the  filing  of  a 
detailed  sworn  statement  of  receipts  and  expenditures  by  the 
treasurer  of  the  political  committee  and  by  the  candidates  or 
their  political  agents.  These  statements  are  usually  filed  with 
the  Secretary  of  State  by  the  treasurers  of  state  committees  and 
candidates  for  state  offices,  and  with  the  county  clerk  in  case 
of  local  elections  between  ten  and  thirty  days  after  the  election. 
The  state  of  Nebraska  requires  a  preliminary  report  of  contri- 
butions "15  days  before  each  and  every  election,  caucus,  con- 
vention, or  primary  election"  setting  forth  the  source  of  any 
money  on  hand  at  the  beginning  of  the  campaigns  and  each 
and  every  contribution  received  by  the  treasurer  amounting 
to  more  than  $25  from  one  person.     Every  individual  contri- 

1  Ore.  Laws,  1909,  sec.  8,  pp.  15-38.       '^  Cal.  Statutes,  1907,  sec.  3,  p.  671. 
2  Md.  Laws,  1908,  ch.  122,  sec.  165. 


256  Regulation  of  Campaigns  [§  195 

bution  in  excess  of  $25  received  between  date  of  filing  and  elec- 
tion must  be  filed  on  date  of  receipt  of  the  same,  while  any 
person  contributing  more  than  $250  must  at  all  times  file  with 
the  county  clerk  a  statement  on  the  day  when  the  contribution 
is  made."^ 

These  itemized  reports  usually  contain  a  statement  showing 
moneys  or  valuable  considerations  received  or  promised,  from 
whom  they  were  received,  or  by  whom  they  were  promised,  the 
name  of  the  person  to  whom  such  expenditures,  gift,  or  promise 
was  made;  and  clearly  set  forth  the  purposes  for  which  such 
money  or  property  was  expended.^  Most  of  the  laws  pre- 
scribe severe  penalties  for  any  attempt  to  have  contributions 
recorded  under  any  other  name  than  that  of  the  real  contrib- 
utor and  like  penalties  for  treasurer  or  political  agent  who 
knowingly  records  such  contribution  under  an  assumed  name. 
They  further  provide  that  all  expenditures  in  excess  of  a 
certain  amount,  usually  five  dollars,  shall  be  accompanied  in 
the  report  with  vouchers  for  the  same.^  These  reports  are 
preserved  as  public  documents  from  one  to  three  years  and 
are  open  to  public  inspection.  Provisions  are  made  for  the 
correction  of  faulty  reports  and  for  definite  procedure  whenever 
the  reports  are  not  filed  within  the  time  limit. 

195.  Enforcement  of  Statutes 
American  states  have  not  followed  English  precedents  in 
providing  for  enforcement  of  their  laws.  On  this  account  our 
elaborate  system  of  injunctions  and  penalties  is  weak  and 
ineffective.  The  English  law  provides  for  a  special  election 
court  of  two  judges,  which  may  be  set  in  motion  on  petition  of 
one  person.  If  the  complaint  is  found  true  on  a  material  issue 
by  both  judges,  the  election  is  at  once  declared  null  and  void 
without  intervention  of  a  jury. 

^  Neb.  General  Latvs,  1909,  ch.  54. 

2  This  constitutes  a  condensed  statement  of  the  Maryland  Law,  1908, 
ch.  122,  sec.  167. 

'  Cal.  Statutes,  1907,  sec.  i,  p.  671;  New  York  Consolidated  Laws,  1909, 
ch.  17,  art.  20,  sec.  546. 


A 


§  196I  Payment  of  Expenses  257 

While  the  acts  of  committees  and  persons  coming  within  the 
purview  of  the  American  law  may  be  reviewed  by  the  regular 
courts,  none  of  the  states  provide  for  a  special  court  for  the 
examination  of  any  complaint  of  violation  of  corrupt  practice 
acts.  Such  cases  must  be  taken  to  the  regular  state  courts, 
which  are  overburdened  with  other  matters.  The  result  is 
that  frequently  the  purposes  of  the  acts  are  defeated. 

196.  Payment  of  Expenses  of  Candidates  by  the  State 

While  the  provisions  of  the  corrupt  practice  acts  enumerated 
above  tend  to  reduce  the  inequality  of  candidates  in  a  campaign, 
they  by  no  means  give  all  of  the  candidates  an  equal  oppor- 
tunity to  present  their  case  to  the  electoral  court.  It  is  there- 
fore urged  by  some  advanced  political  thinkers  that  proper 
campaign  expenses  should  be  met,  at  least  in  part,  by  the  state; 
or  that  the  state  should  provide  some  method  whereby  the 
claims  of  the  different  candidates  should  be  placed  before  every 
elector  in  a  manner  prescribed  by  statute.  The  state  control 
of  campaigns  and  the  payment  of  campaign  expenses  is  entirely 
in  harmony  with  the  evolution  of  other  parts  of  the  election 
machinery.  As  already  shown,  election  ballots  were  formu- 
lated, prepared,  and  paid  for  by  the  party  managers  or  the 
candidates,  subject  only  to  slight  control  over  the  form  of  the 
ballot;  this  process  is  now  a  state  function.  It  was  soon  dis- 
covered that  the  preHminaries  to  the  printing  of  the  election 
ballot,  such  as  the  nomination  of  candidates,  concerned  the 
voters  even  more  than  the  election  itself,  and  so  within  the  last 
decade  state  after  state  has  assumed  the  function  of  regulating 
primary  elections,  including  the  printing  of  the  ballots  at  the 
cost  of  the  state.  Apparently  the  country  is  approaching  the 
conclusion  that  the  entire  election  process  is  a  matter  of  state 
concern  and  hence  should  constitute  a  state  function. 

Several  states  have  already  taken  steps  in  the  direction  of 

assuming  a  part  of  the  campaign  expenses,  or  of  providing  means 

of  circulating  the  claims  of  the  different  candidates  among  all 

of  the  electors.     For  instance,  the  Colorado  law  of  1909  limits 

18 


258  Regulation  of  Campaigns  [§  196 

campaign  contributions  to  a  fixed  amount  supplied  by  the 
state  and  the  candidates,  while  all  other  contributions  are  abso- 
lutely forbidden,  by  the  follo\vdng  provisions: 

Sec.  I.  "That  the  expenses  of  conducting  the  campaigns  to 
elect  state,  district,  and  county  ofl&cers  at  general  elections 
shall  be  paid  only  by  the  State  and  by  the  candidates  for  ofiice 
at  such  elections  in  the  following  manner:  Within  ten  days 
after  the  nomination  of  candidates  for  state  offices  by  a  poUt- 
ical  party,  the  state  treasurer  shall  pay  to  the  state  chairman 
of  that  poHtical  party  for  campaign  purposes  a  sum  equal  to 
25  cents  for  each  vote  cast  at  the  last  preceding  general  elec- 
tion for  the  nominee  for  governor  of  that  poUtical  party.  Such 
state  chairman  out  of  such  sum,  shall,  within  ten  days  after 
the  nomination  by  that  political  party  of  candidates  for  county 
officers  in  each  county,  transmit  to  the  county  chairman  of  such 
political  party  a  sum  equal  to  12^  cents  for  each  vote  cast  in 
that  county  at  the  last  preceding  general  election  for  nominee 
for  governor  of  that  political  party  for  campaign  purposes; 
that  each  candidate  for  a  state,  district,  or  county  office  may 
contribute  respectively,  to  the  state,  district,  or  county  com- 
mittee for  campaign  purposes  and  for  his  own  campaign  ex- 
penses, a  sum  not  exceeding  40  per  cent  of  the  first  year's  salary 
of  such  office,  or  if  that  officer  is  by  law  entitled  to  all  the  fees 
collected  by  such  office,  he  may  pay  a  svmi  not  exceeding  25  per 
cent  of  the  fees  of  such  office  for  the  calendar  year  preceding 
the  year  in  which  such  nomination  is  made. 

Sec.  3.  "That  any  person  or  corporation,  except  as  above 
provided,  who  shall  directly  or  indirectly  contribute  any  money 
or  property  of  any  kind  or  character  to  or  for  any  candidate 
for  any  office  to  be  voted  for  at  any  general  election,  or  to  or 
for  any  state  or  county  committee  of  any  poUtical  party,  or  to 
or  for  the  chairman  thereof,  or  to  or  for  any  member  or  officer 
thereof,  shall  be  deemed  guilty  of  a  felony,  and  upon  con\ac- 
tion  to  be  punished  by  imprisonment  in  the  pentitentiary  for 
a  term  of  not  more  than  two  years,  or  to  be  fined  not  exceeding 
$5000,  or  both. 


§197]  Statement  of  Arguments  259 

Sec.  4.  "That  the  chairman  of  any  state  or  county  committee 
of  any  political  party,  or  any  member  or  officer  of  such  com- 
mittee, or  any  candidate  for  any  ofl&ce  to  be  voted  for  at  any 
general  election  who  shall,  except  as  above  provided,  directly 
or  indirectly  receive  for  campaign  expenses  any  contribution 
of  money  or  property  of  any  kind  or  character,  shall  be  deemed 
guilty  of  a  felony,  and  upon  conviction  be  punished  by  impris- 
onment in  the  penitentiary  for  a  term  of  not  more  than  two 
■years,  or  be  fined  not  exceeding  $5000,  or  both."  ^ 

197.  Statements  and  Arguments  Distributed  by  the  State 

The  Oregon  law  of  1908  aims  to  estabUsh  the  equality  of 
candidates  in  a  slightly  different,  though  not  less  effective, 
manner.  The  law  declares  that:  "The  right  to  spend  large 
sums  of  money  publicly  in  elections  tends  to  the  choice  of  none 
but  rich  men  or  tools  of  wealthy  corporations  to  important 
oflfices,  and  thus  deprives  the  people's  government  of  the  serv- 
ices of  its  poorer  citizens,  regardless  of  their  ability.  The 
primary  purpose  of  this  bill  is,  as  nearly  as  possible,  to  pre- 
vent the  use  of  any  means  but  arguments  addressed  to  the 
voters'  reason  in  the  nomination  and  elections  in  Oregon."  ^ 
Hence  the  following  important  provisions: 

Sec.  I.  "That  no  sums  of  money  shall  be  paid,  and  no  ex- 
penses authorized  or  incurred  by  or  on  behalf  of  any  candi- 
date to  be  paid  by  him,  except  such  as  he  may  pay  to  the  state 
for  printing,  as  herein  provided,  in  his  campaign  for  nomination 
to  any  public  office  or  position  in  this  State  in  excess  of  15  per 
cent  of  one  year's  compensation  or  salary  of  the  office  for  which 
he  is  a  candidate:  Provided,  That  no  candidate  shall  be  re- 
stricted to  less  than  $100  in  his  campaign  for  such  nomination. 
No  sums  of  money  shall  be  paid,  and  no  expenses  authorized 
or  incurred,  contrary  to  the  provision  of  this  act  for  or  on  behalf 
of  any  candidate  for  nomination."  ^ 

1  Colorado  Law,  approved  April  27,  1909. 

*  Oregon  Law,  endorsed  February  3,  1908,  Preamble. 

'  Oregon  Law,  endorsed  February  3,  1908,  sec.  i. 


26o  Regulation  of  Campaigns  [§  197 

Section  8  provides  similar  restrictions  on  expenses  to  secure 
the  election  after  the  nomination.  The  expenses  of  election, 
excluding  payments  for  statements  issued  in  pamphlet  form, 
which  in  this  case  are  paid  by  the  party  organization,  is  limited 
to  ten  per  cent  of  one  year's  salary  of  the  office  for  which  a 
candidate  is  nominated.^ 

Every  candidate  for  nomination,  or  his  friends  with  per- 
mission from  said  candidate,  may  file  with  the  Secretary  of 
State  a  statement  covering  one  printed  page  of  matter  not 
later  than  the  thirty-third  day  before  the  primary  election. 
Those  opposing  his  nomination  may  submit  a  statement  of 
equal  length  giving  reasons  why  said  candidate  should  not  be 
nominated,  not  later  than  the  thirty-third  day  before  the 
nominating  election;  provided  the  statement  is  accompanied 
with  proof  by  affidavit  that  they  have  "caused  to  be  served 
personally  and  in  person  upon  such  candidate  a  true  copy  of 
such  statement."  ^  Since  this  statement  must  be  filed  six  days 
prior  to  the  candidate's  statement,  the  candidate  is  given  an 
opportunity  to  meet  the  claims  against  his  nomination.  Both 
the  statement  of  the  candidate  and  that  of  the  opposition  are 
boimd  together  in  pamphlet  form  and  mailed  to  every  voter 
of  the  candidate's  district  between  the  twentieth  and  fifteenth 
day  prior  to  the  primary  election.^ 

Section  3  provides  that  every  candidate  shall  pay  to  the 
state  for  one  page  of  publication  a  sum  varying  with  the  dif- 
ferent offices.  For  instance,  a  candidate  for  office  in  Congress 
must  pay  $100,  while  a  candidate  for  senator  or  representative 
in  the  state  assembly  pays  only  $10.  Each  candidate  is  allowed 
three  additional  pages  or  less  at  the  rate  of  $100  per  page."* 

Section  7  provides  for  the  publication  of  pamphlets  in  favor 
of  the  successful  nominees  prior  to  the  general  election.  This 
provision  reads: 

^  Oregon  Law,  endorsed  February  3,  1908,  sec.  8. 

2  Oregon  Law,  endorsed  February  3,  1908,  sec.  2. 

3  Oregon  Law,  endorsed  February  3,  1908,  sec.  4. 
*  Law  endorsed  Februar>-  3,  1908,  sec.  3. 


f 


§197]  Statement  of  Arguments  261 

"All  the  portrait  cuts,  statements,  and  arguments  of  all  polit- 
ical parties  and  independent  candidates  shall  be  bound  together 
in  one  pamphlet,  and  no  party  shall  have  more  than  24  pages, 
nor  an  independent  candidate  more  than  2  pages  therein.  The 
political  parties  and  independents  shall  pay  to  the  secretary 
of  state  for  the  public  treasury  for  said  pamphlet  at  the  time 
of  filing  their  copy  with  him,  at  the  rate  of  $50  for  each  printed 
page  of  space  in  said  pamphlet  used  by  such  party  or  indepen- 
dent candidate."  The  same  provisions  for  the  distribution  of 
these  pamphlets  among  the  voters  as  provided  in  the  primary 
campaign  apply  here.^ 

The  provisions  of  these  two  states  have  been  given  in  such 
detail  because  they  constitute  the  last  step  in  bringing  the 
entire  campaign  under  state  supervision,  with  the  aim  that 
principles  and  men,  and  not  the  corrupt  use  of  campaign  funds, 
shall  form  the  guiding  influence  in  the  election  of  oflScers  whose 
function  it  is  to  formulate  the  sovereign  will  or  to  administer 
this  will  when  once  formulated. 

^  Oregon  Law,  endorsed  February  3,  1908,  sec.  7. 


CHAPTER  XrX 

LEGAL  SAFEGUARDS  IN  CASTING   AND   COUNTING  THE 
BALLOTS 

198.  References 

Bibliography:  A.  C.  Luddington,  American  Ballot  Laws  (N.  Y.  Educa- 
tion Department  Bulletin,  No.  40),  part  iv,  211-220;  Select  List  of  References 
on  the  Short  Ballot  (Library  of  Congress,  1911). 

Introduction  of  the  Australian  Ballot:  J.  H.  Wigmore,  The  Aus- 
tralian Ballot  System  as  embodied  in  the  Legislation  of  various  Countries  (1889); 
D.  Campbell,  How  the  Written  Ballot  came  into  the  U.  S.  (1890);  W.  B. 
Ivins,  Electoral  Reform  (1889);  C.  Gross,  Early  History  of  the  Ballot  {Am. 
Hist.  Rev.,  III). 

Present  Status  of  the  Ballot:  A.  C.  Luddington,  Present  Status  of 
Ballot  Laws  in  the  U.  S.  (Am.  Pol.  Sci.  Rev.,  Ill);  J.  B.  Bishop,  The  Ballot 
in  Thirty-three  States  {Forum,  XII);  W.  H.  Glasson,  Australian  Ballot 
{South  Atlantic  Quart.,  April,  1909);  A.  C.  Luddington,  Ballot  Laws  in  the 
Southern  States  (Ibid.,  Jan.,  1910);  G.  W.  McCrary,  Am.  Law  of  Elections 

(1897). 

Ballot  Reform:  W.  B.  Shaw,  Good  Ballots  and  Bad  {Outlook,  Dec.  9, 
1905);  P.  L.  Allen,  Ballot  Laws  and  their  Workings  {Pol.  Sci.  Quart.,  1906, 
XXI);  P.  L.  Allen,  The  Multifarious  Australian  Ballot  {North  Amer.  Rev., 
CXCI);  W.  B.  Ivins,  The  Electoral  Systejn  of  the  State  of  N.  Y.  (N.  Y.  State 
Bar  Assoc,  Proceedings,  1906);  R.  H.  Dana,  Australian  Ballot  System  of  Mas- 
sachusetts (191 1);  H.  E.  Deming,  Govermnoit  of  Am.  Cities  (1909))  ch.  xiii; 
F.  J.  Goodnow,  Politics  atid  Administration  (1900),  23-33. 

The  Short  Ballot:  S.  R.  Childs,  Short-Ballot  Principles  (191 1);  C.  A. 
Beard,  The  Ballot's  Burden  {Pol.  Sci.  Quart.,  XXIV,  No.  4);  C.  E.  Merriam, 
Primary  Elections  (1908),  167-171;  C.  A.  Beard,  Loose  Leaf  Digest  of 
Short  Ballot  Charters  (191 1);  Short  Ballot  Organization  {Short  Ballot  Bulle- 
tin, 191 1). 

The  Voting  Machine:  F.  Kiefer,  Voting  Machine  vs.  the  Paper  Ballot 
{Forum,  XXVIII);  I.  Powell,  Voting  Machines  in  Use  {Technical  World 
Mag.,  IV,  710);  N.  J.,  Annual  Report  regarding  the  use  of  the  voting  Machine 
in  New  Jersey  (Trenton). 

199.  Ballot  Reform  and  the  Australian  Ballot 
Another  series  of  dangers  to  the  state  by  disturbance  of 
popular  elections  come  from  the  undue  influence  used  and  the 
corrupt  practices  employed  at  the  polls  —  such  as  the  false 


§  2oo]  Party  Column  Ballot  263 

marking  of  ballots,  the  false  counting  of  votes,  and  the  false 
reporting  of  returns.  For  a  long  time  safeguards  have  been 
provided  by  law  for  the  purpose  of  eliminating  some  of  these 
practices  subversive  of  the  electoral  function;  still  others  are 
now  being  promoted  for  the  same  object. 

Prior  to  1890  ballots  for  all  elections  were  prepared  by  polit- 
ical parties  or  associations  of  electors,  subject  only  to  slight 
regulations  by  law  as  to  the  general  form  of  the  ballot.  This 
system  led  to  many  corrupt  practices  and  lent  itself  to  every 
sort  of  undue  influence;  it  made  secrecy  of  the  vote  practically 
impossible;  it  limited  the  right  of  the  electorate  to  cast  votes 
outside  the  candidates  of  regular  parties;  it  put  nominations 
into  the  hands  of  a  few  persons.  The  most  efficient  measure 
to  correct  corrupt  practices  and  give  facihty  to  independence 
and  freedom  of  expression  is  the  single  ballot,  which  contains 
the  na,mes  of  the  candidates  of  all  parties  and  guarantees  se- 
crecy in  its  use.  This  advanced  method  of  protecting  the  integ- 
rity of  the  ballot,  worked  out  in  Australia,  has  been  generally 
utilized  in  America.  The  Australian  ballot  provided  not  only 
for  secrecy  (the  only  efficient  protection  against  duress  in  vot- 
ing) ,  but  also  placed  in  the  hands  of  each  elector  the  names 
of  all  candidates.  The  most  complete  form  requires  all  names 
to  be  printed  in  alphabetical  order  under  their  respective  offices; 
this  form  was  adopted  in  Massachusetts. 

200.   Party  Column  Ballot 

Political  pressure  in  most  of  the  other  states  forced  the  adop- 
tion of  a  different  arrangement.  Party  leaders  and  organiza- 
tions demanded  that  the  names  of  candidates  of  each  party 
should  be  arranged  in  separate  columns  under  their  respective 
offices,  and  that  a  circle  or  square  for  straight  voting  should  be 
provided  for  at  the  head  of  each  party  column.  Later  each 
party  was  authorized  to  select  a  party  emblem,  which  was 
placed  either  immediately  above  the  party  circle  or  within  the 
circle,  for  the  purpose  of  assisting  the  illiterate  voter  in  locat- 
ing the  position  of  his  party's  candidates  on  the  ticket,   Candi- 


264  Casting  and  Counting  Ballots         [§  200 

dates  who  were  nominated  by  petition  had  their  names  placed 
to  the  right  of  the  party  column,  while  the  extreme  right  of  the 
ballot  was  devoted  to  a  blank  column  containing  only  the  head- 
ings of  the  ofl5ces,  in  which  voters  might  write  or  paste  the 
names  of  candidates  not  printed  on  the  ballot. 

The  defence  of  the  party  column  system  is  based  upon  the 
assumption  that  most  voters  desire  to  vote  a  straight  party 
ticket  and  that  this  system  will  greatly  facihtate  voting.  It  is 
further  claimed  that  independent  voting  is  as  easy  under  this  sys- 
tem as  imder  the  Massachusetts  system,  for  in  each  case  the 
elector  who  desires  to  vote  a  split  ticket  must  place  a  mark 
opposite  the  name  of  each  candidate  individually.  In  fact, 
several  states  have  retained  the  party  column  system  and  at 
the  same  time  have  made  independent  voting  simpler  than  under 
the  Massachusetts  system.  The  following  instructions  which 
appear  at  the  head  of  the  election  ballot  of  the  state  of  Wash- 
ington illustrate  this  method:  ^ 

"Mark  X  in  O  under  party  name,  for  whose  candidates 
you  wish  to  vote. 

"If  you  desire  to  vote  for  any  other  candidate  of  any  other 
party,  place  X  in  D  at  the  right  of  the  name  of  such  candidate." 

The  law  further  provides  that  in  case  the  voter  decides  to  vote 
a  split  ticket  according  to  the  second  instruction  he  shall  be 
deemed  to  have  voted  for  all  the  persons  named  as  the  can- 
didates of  the  poUtical  party,  which  he  designated  by  his  mark 
*X'  in  the  party  circle,  except  those  marked  individually  in 
other  columns.^  The  New  York  law  places  a  similar  con- 
struction upon  the  intent  of  the  voter  who  marks  the  ballot 
as  described  above,  but  aims  to  discourage  such  a  simple 
method  of  cutting  a  ticket  by  printing  only  the  following 
method  for  voting  a  split  ticket  at  the  head  of  the  ballot: 
"To  vote  a  spUt  ticket,  that  is,  for  candidates  of  different 
parties,  the  voter"  should  make  a.  (X)  mark  before  the  name 
of  each  candidate  for  whom  he  votes."  ^ 

^  Wash.  Laws,  1906,  pp.  19-23.         2  Wash.  Laws,  1895,  sec.  8,  p.  391. 
3  N.  Y.  Laws,  1898,  vol.  ii,  p.  967. 


§§  201,202]  Voting  Machines  265 

201.   Objections  to  the  Party  Column 

There  are  serious  objections  to  the  party  column  system, 
which  have  gained  special  force  within  recent  years.  Fre- 
quently the  two  leading  parties  nominate  the  same  candidates, 
especially  in  the  case  of  candidates  for  the  judiciary,  whose 
officers  should  be  considered  non-partisan.  Third  parties 
are  becoming  more  numerous  and  especially  in  municipal 
elections  frequently  fuse  with  the  minority  party,  at  least  upon 
a  number  of  candidates.  This  means  that  the  same  candi- 
date for  an  office  may  be  nominated  by  several  parties  and  by 
a  number  of  independent  organizations;  and,  under  the  party 
column  system,  his  name  must  appear  on  the  ballot  for  each 
organization  nominating  him.  Under  the  Massachusetts  sys- 
tem, on  the  other  hand,  his  name  appears  but  once  arranged 
in  alphabetical  order  under  the  appropriate  office.  The  name 
of  all  the  organizations  which  nominated  him  appear  to  the 
right  of  the  candidate  in  abbreviated  form.  It  is  apparent 
that  this  method  will  greatly  shorten  the  ballot.  The  need  of 
this  simplification  was  convincingly  illustrated  by  the  twenty 
column  ballot  used  in  the  municipal  election  of  New  York  City 
in  1909;  the  name  of  the  successful  candidate  appeared  in  seven 
columns  and  that  of  his  nearest  rival  in  five  columns. 

202.  Voting  Machines 

Some  of  the  states  make  provision  for  the  adoption  of  a  vot- 
ing machine  in  place  of  the  printed  ballot,  but  in  such  cases 
they  invariably  provide  that  the  voting  machine  must  offer 
the  elector  the  same  freedom  of  choice  as  is  permitted  by  use 
of  the  printed  ballot  prescribed.  A  committee  or  commission 
is  designated  by  the  governor  which  must  report  favorably  on 
a  voting  machine  before  it  can  be  adopted  in  any  electoral  dis- 
trict. In  New  York  State  the  governor  appoints  three  voting 
machine  commissioners,  one  an  expert  in  patent  law  and  the 
other  two  mechanical  experts.  These  commissioners  pass  upon 
"accuracy,  efficiency,  and  capacity  to  register  the  will  of  the 


266  Casting  and  Counting  Ballots         [§  203 

voters."  The  voting  machine  must  meet  the  following  require- 
ments. The  machine  must  allow  votes  for  each  of  at  least  seven 
parties,  with  the  single  straight  ticket  device.  It  must  fur- 
ther permit  a  voter  "to  vote  for  any  person  for  any  office, 
whether  or  not  nominated  as  a  candidate  by  any  party  or  organ- 
ization," and  must  permit  voting  in  absolute  secrecy.^  The 
Michigan  law  is  even  more  specific  in  the  protection  of  the  inde- 
pendence of  the  voter.  It  provides  that  the  voting  machine 
must  be  so  constructed  "that  any  elector  may  cast  an  irregu- 
lar ballot  or  otherwise;  that  is,  must  enable  him  to  vote  for 
any  person  for  any  ofl&ce,  although  such  person  may  not  have 
been  nominated  by  a  party,  and  although  his  name  may  not 
appear  on  such  machine."  ^ 

203.  Bi-Partisan  Election  Boards 

The  importance  of  the  bi-partisan  registration  board  has 
been  adverted  to  in  discussion  of  registration  laws.  In  the 
same  connection  it  has  been  noted  that  a  bi-partisan  registra- 
tion board  is  provided  for  in  most  states  by  making  the  regu- 
lar election  ofl&cers  the  registration  board.  Parties  gained 
their  first  legal  recognition  in  legislation  relating  to  the  com- 
position of  the  election  board.  Most  states  provide  for  three 
or  four  election  ofl&cers  exclusive  of  clerks  and  other  minor 
ofl&cials.  These  boards  are  usually  appointed,  but  in  a  few 
states  they  are  chosen  by  the  voters.  The  Pennsylvania  con- 
stitution, for  example,  provides  that  the  ofl&cers  of  each  elec- 
tion division  shall  be  composed  of  one  election  judge  and  two 
inspectors,  elected  by  the  voters.^  Each  voter  of  each  elec- 
tion division  is  authorized  to  vote  for  one  election  judge  and 
one  inspector.  By  this  method  it  was  intended  that  the  minor- 
ity party  should  be  able  to  elect  one  inspector.  The  purpose 
of  the  constitution,  however,  has  been  defeated  in  many  di\i- 
sions  where  the  majority  party  is  so  strong  that  it  is  able  to 

1  N.  Y.  Election  Laws,  1906,  p.  127. 

'  Mich.  Election  Laws,  1906,  pp.  165-66. 

8  Pa.  Const.,  art.  VII,  sec.  14. 


§  204]  Watchers  and  Challengers  267 

divide  its  vote  and  elect  two  inspectors  as  well  as  the  election 
judge. 

The  method  of  creating  bi-partisan  election  boards  in  large 
cities  is  generally  as  follows:  the  governor  or  mayor  appoints 
a  bi-partisan  board  selected  from  the  nominations  made  by 
the  two  leading  pohtical  parties  within  the  city.  In  Boston 
the  mayor  appoints  four  election  commissioners  for  the  city 
as  a  whole,  two  from  each  of  the  two  leading  parties,  from  a 
Hst  submitted  by  the  ofi&cers  of  these  parties.  This  central 
board  appoints  four  election  ofi&cers  for  each  election  district, 
and  here  again  two  are  chosen  from  each  of  the  two  leading 
parties.  In  Missouri  the  governor  appoints  a  board  of  election 
commissioners  for  each  city,  one  being  designated  as  chairman, 
another  as  secretary,  and  the  third  belonging  to  the  leading 
party  opposed  in  political  affiHation  to  the  chairman  and  the 
secretary.  This  central  board  appoints  four  election  judges 
for  each  election  district,  two  from  each  of  the  two  leading 
parties,  selected  from  lists  presented  by  these  parties.  These 
illustrations  represent  a  method  generally  adopted  and  show 
that  the  bi-partisan  election  board  has  become  recognized  as 
the  best  method  to  maintain  the  purity  of  elections.  It  is 
highly  important  that  the  election  oflficers  should  also  be  the 
registration  officers,  for  it  is  the  register  prepared  on  registra- 
tion day  shortly  before  the  election  upon  which  the  election 
officers  must  rely  for  the  prevention  of  fraud.  If  they  them- 
selves prepare  the  register,  it  is  obvious  that  they  will  have 
gained  knowledge  which  will  assist  them  in  detecting  attempts 
at  impersonation  and  other  corrupt  practices. 

204.  Watchers  and  Challengers 

The  bi-partisan  board  does  not  provide  for  the  protection  of 
the  interests  of  candidates  of  parties  other  than  those  of  the 
two  leading  organizations.  Neither  does  it  oflfer  protection 
to  candidates  nominated  by  petition  only.  This  condition  is 
sought  to  be  remedied  by  the  legal  provision  for  watchers. 
In  New  York  State  "any  party  or  independent  body  making 


268  Casting  and  Counting  Ballots         [§  205 

nominations  may,  through  its  chairman  or  secretary,  appoint 
not  more  than  two  watchers  for  each  election  district."  This 
same  privilege  is  extended  to  parties  and  independent  bodies 
at  the  time  of  registration.  These  watchers  may  be  present  at 
the  polls  within  the  guard  rails  from  fifteen  minutes  before 
the  unlocking  and  examining  of  the  ballot  box  until  after  the 
announcement  of  results  of  the  canvass.  They  are  allowed  to 
examine  the  ballot  boxes  before  the  opening  of  the  polls  and 
at  the  time  of  the  canvass  they  may  examine  any  ballot  upon 
request.^  In  addition  to  watchers,  the  New  York  law  permits 
each  party  and  independent  body  to  appoint  at  least  one  chal- 
lenger. These  officers  are  permitted  to  remain  just  outside 
the  guard  rail  to  each  polling  place  where  they  can  plainly  see 
what  is  going  on  within  such  rail  outside  the  booths  from  the 
opening  to  the  closing  of  the  polls.^  Other  states  provide  for 
the  appointment  of  challengers  only,  but  these  are  given  the 
powers  exercised  by  watchers  in  New  York  State. 

205.  Canvassers  of  the  Votes 

The  only  election  officers  not  bi-partisan  are  the  board  of 
canvassers.  Usually  two  boards  are  provided,  viz.,  county  can- 
vassers and  state  canvassers,  and  in  some  cases  special  canvass- 
ers are  appointed  for  cities.  In  New  York^  the  county  board 
of  canvassers  is  composed  of  the  board  of  supervisors;  while 
in  Illinois  •*  this  board  is  made  up  of  the  county  clerk  assisted 
by  two  justices  of  the  peace.  In  New  York  State  the  state 
canvassing  board  includes  the  Secretary  of  State,  Attorney 
General,  Comptroller,  State  Engineer,  and  Treasurer,^  while 
in  Illinois,*^  it  is  composed  of  the  Secretary  of  State,  Auditor, 
Treasurer,  and  Attorney  General.  In  case  of  an  error  of  a  tech- 
nical character  the  county  canvassers  usually  have  the  author- 

^  N.  Y.  Election  Laws,  1906,  pp.  32,  gi,  107. 
2  N.  "Y.  Election  Laws,  1906,  pp.  91,  173. 
'  N.  Y.  Election  Laws,  1906,  p.  113. 

*  111.  Election  Laws,  1906,  pp.  51,  52. 

*  N.  Y.  Election  Laws,  1906,  p.  124. 

*  III.  Election  Laws,  1906,  p.  53. 


§  2o6]  Short  Ballot  Movement  269 

ity  to  summon  the  election  district  officers  and  order  them  to 
make  out  the  returns  in  a  legal  manner.^  It  is  obvious,  there- 
fore, that  the  character  of  the  county  and  state  board  of  can- 
vassers varies  in  the  different  states.  They  agree,  however, 
upon  the  point  that  no  provision  is  made  for  a  bi-partisan 
board  of  canvassers. 

206.  Short  Ballot  Movement 

The  foregoing  considerations  of  the  duties  of  the  electorate 
may  have  led  to  or  supported  the  conviction  that  the  voter  is 
overburdened  with  restrictions  and  legal  requirements.  The 
elector  is  called  upon  to  appear  in  person  before  every  election 
to  establish  his  right  to  the  ballot ;  he  is  urged  to  take  an  active 
part  in  the  nomination  of  a  bewildering  number  of  candidates; 
finally,  he  is  asked  to  exercise  discretion  in  the  choice  of  candi- 
dates for  a  large  number  of  offices  at  the  general  election. 
Without  adequate  means  of  informing  the  elector,  it  is  not  sur- 
prising that  party  organizations,  which  in  practice  means  party 
"bosses,"  have  in  the  past  usurped  the  power  of  nomination  of 
candidates  and  have  further  buttressed  their  power  in  the  gen- 
eral election  through  a  ballot  arranged  in  party  columns  with 
provision  for  straight  voting,  under  the  plea  of  convenience 
to  the  voter. 

Under  present  conditions  this  is  not  so  much  a  usurpation 
as  it  is  a  natural  result.  Attempts  have  been  made  to 
emancipate  the  voter  from  the  control  of  the  machine  by 
giving  to  him  the  right  to  make  direct  nominations.  This 
change,  however,  has  been  as  yet  disappointing,  because  it 
does  not  make  necessary  intelligent  and  independent  electoral 
action.  Another  remedy  now  proposed  is  to  relieve  the  voter 
from  the  necessity  of  choosing  a  large  number  of  officers  at 
any  one  election  by  a  "short  ballot."  This  suggested  reform 
must  work  in  one  or  both  of  two  ways:  (i)  by  increasing 
the  number  of  elections;  (2)  by  reducing  the  number  of 
elective  oflacers. 

^  N.  Y.  Election  Laws,  1906,  p.  115. 


270  Casting  and  Counting  Ballots         [§  207 

207.   Subdivision  of  Elections 

An  attempt  to  solve  the  problem  by  the  former  method  is 
typified  by  the  past  elections  in  the  state  of  Pennsylvania. 
The  constitutions  of  1873  aimed  to  separate  national,  state,  and 
municipal  elections.  The  elections  of  state  officers,  such  as 
governor,  treasurer,  auditor,  etc.,  usually  occurred  in  years  when 
there  was  no  presidential  election.  The  governor  was  chosen 
every  four  years  and  the  election  came  in  those  even  years 
which  were  not  presidential  years.  The  treasurer  was  chosen 
every  odd  year,  while  the  auditor  held  office  for  three 
years,  causing  the  election  to  fall  alternately  on  even  and  odd 
years.  Thus  Pennsylvania  had  not  only  separated  state  and 
national  elections,  but  the  elections  of  state  officers  as  well. 
Likewise  city,  ward,  borough,  and  township  elections  were  sep- 
arated from  state  and  county  elections.  The  state  and  county 
elections  were  held  in  the  Fall,  whereas  municipal  elections 
were  held  in  February. 

This  system  greatly  shortened  the  ballot,  but  it  rather 
increased  than  decreased  the  burdens  of  the  voter.  The 
whole  election  machinery  —  personal  registration,  primary 
elections,  conventions,  and  the  regular  election  —  had  to  be  set 
in  motion  twice  each  year  to  take  care  of  the  state  and  county 
elections  in  November  and  the  municipal  elections  in  Febru- 
ary. The  voter,  wearied  with  these  many  civic  demands, 
abdicated  his  power  to  a  poUtical  machine  which  exercised 
an  autocratic  power  not  equalled  in  any  other  state,  the  elec- 
torate being  a  convenient  tool  in  its  hands.  In  1907  the 
legislature  of  Pennsylvania  proposed  amendments  ^  for  a 
sweeping  change  in  the  nrnnber  and  time  of  elections.  These 
amendments  proposed:  (i)  that  all  the  state  and  county 
elective  officers  should  hold  office  four  years,  and  (2)  that 
the  municipal  and  county  elections  should  be  held  in  the  Fall 
of  odd  years  and  the  state  elections  in  even  years  not 
presidential  years.  The  legislature  of  1909  provided  that  the 
1  Laws,  1907,  pp.  836-39. 


§  2o8]  Number  of  Officers  271 

proposed  changes  should  be  submitted  to  voters  at  the 
November  election  in  1909,  at  which  time  they  were  adopted. 
Many  students,  however,  maintain  that  lasting  electoral 
reform  must  be  preceded  by  the  adoption  of  the  second  alter- 
native —  the  reduction  of  the  number  of  elective  offices. 
At  the  present  time  the  voter  is  called  upon  to  elect  two  sets 
of  officers  whose  functions  are  distinct:  (i)  the  officers  whose 
functions  are  legislative  or  poUcy-framing;  (2)  officers  whose 
functions  are  purely  administrative.  It  is  suggested  that  purely 
administrative  officers  should  be  eliminated  from  the  elective 
Hst.  "There  can  be  no  good  reason,"  to  quote  Professor  Mer- 
riam,  "why  such  officers  as  auditor,  engineer,  and  surveyor 
should  be  elective.  An  auditor  must  be  accurate  and  honest, 
and  there  is  no  such  thing  as  RepubUcan  or  Democratic  audit- 
ing. Nor  is  there  a  Democratic  way,  or  a  Republican  way, 
or  a  Prohibitionist  way  of  administering  the  office  of  engineer. 
Certainly  there  can  be  no  form  of  surveying  that  could  be 
characterized  as  Socialistic  or  Democratic  or  Republican."  ^ 
On  the  other  hand,  legislation  permits  of  differences  of  opinion, 
and  officers  intrusted  with  this  function  must  be  elected  by  and 
responsible  to  the  electorate. 

208.  Diminishing  the  Number  of  Elective  Officers 
The  distinction  between  policy-determining  and  administra- 
tive officers  in  elections  has  been  recognized  from  the  beginning 
in  our  national  government,  where  only  the  policy-making  offi- 
cers —  President,  senators,  and  congressmen  —  are  chosen 
either  directly  or  indirectly  by  the  voters.  The  same  prin- 
ciple is  slowly  gaining  ground  in  our  municipal  elections,  for  in 
the  last  two  decades  most  of  the  administrative  officers  of  the 
leading  cities  have  been  made  appointive.  But  the  burden 
of  elective  administrative  officers  still  rests  on  the  electorate 
in  the  smaller  cities  and  in  the  state,  county,  and  town- 
ship. 

Scarcely  any  attempt  has  been  made  to  remedy  this  e\dl.   The 
^Merriam,  C.  E.,  Primary  Elections,  p.  169. 


272  Casting  and  Counting  Ballots         [§  209 

recommendation  of  Governor  Hughes  to  the  legislature  of  New 
York  State  that  officers,  such  as  Secretary  of  State,  Comptroller, 
Treasurer,  etc.,  should  be  made  appointive  is  one  of  the  first 
official  steps  in  the  direction  of  applying  the  principle  to  state 
elections.  The  recommendation  has  not  been  acted  upon  for 
the  reason  that  the  poUticians  know  it  will  reduce  their  power, 
and  a  popular  theory,  fostered  by  partisan  leaders,  is  that  it  is 
undemocratic. 

209.  Defects  of  Short  Ballot  System 

The  assumption  is  that  it  will  be  easier  to  watch  one  officer 
and  obtain  information  with  respect  to  his  honesty  and  efficiency 
than  it  is  for  the  electorate  to  inform  itself  concerning  many. 
While  this  seems  self-evident,  the  assimiption  carries  with  it 
fundamental  error.  Judgment  as  to  economy,  efficiency,  etc., 
cannot  be  based  on  the  doings  of  the  chief  executive  or  on  the 
acts  of  a  legislative  body.  Economy  is  an  institutional  result; 
information  which  will  warrant  a  conclusion  with  respect  to 
the  efficiency  of  a  single  executive  must  be  derived  from 
analysis  of  the  results  of  the  acts  of  an  army  of  employees 
under  him.  Intelligent  consideration  of  the  efficiency  of 
administration  of  pubUc  works  requires  the  same  inquiry 
concerning  results,  the  same  knowledge  of  details  whether  the 
head  of  the  department  is  appointed  or  elected;  responsibiHty 
cannot  be  fixed  on  the  appointing  power  in  any  different  way 
than  it  may  be  fixed  on  the  ones  appointed  who  are  in  charge 
of  departments. 

No  electoral  plan  which  may  be  adopted  will  relieve  the 
community  from  providing  for  itself  means  of  intelligence  as 
comprehensive  and  far  reaching  as  are  the  activities  to  be 
performed  by  the  government  whether  one  officer  in  charge  is 
elected  or  several.  As  functions  and  activities  increase  any 
solution  which  falls  short  of  knowing  what  is  done  will  simply 
postpone  the  day  when  pubhc  business  may  be  measured  by 
the  same  standards  of  economy  and  efficiency  as  is  private 
business. 


Part   IV 
Utilization  of  the  Electorate 


CHAPTER  XX 
POPULAR  VOTES  ON  CONSTITUTIONAL  PROVISIONS 

210,  References 

Bibliography:  A.  B.  Hart,  Manual  (1908),  §§  102,  136,  203,  205;  Chan- 
ning,  Hart  and  Turner,  Guide  (1912),  §§  175,  272;  A.  B.  Hart,  AcHial  Gov- 
ernment (3d  ed.,  1908),  §  17;  E.  McClain,  Constitutional  Law  (rev.  ed., 
1910),  §  8;  W.  I.  Dodd,  The  Revision  and  Amendment  of  State  Constitutions 
(1910),  xiii-xvii. 

Constitutional  Discussions:  H.  C.  Black,  Constitutional  Law  (2d  ed., 
1897),  §§  22,  28,  29;  T.  M.  Cooley,  Constitutional  Limitations  (7th  ed., 
1903),  ch.  iii;  T.  M.  Cooley,  Constitutional  Law  (1898),  ch.  i;  J.  I.  C.  Hare, 
Constitutional  Law  (1889),  chs.  v-vii;  E.  McClain,  Constitutional  Law 
(1910),  §  13;  J.  N.  Pomeroy,  Constitutional  Law  (loth  ed.,  1888),  ch.  ii;  J.  B. 
Thayer,  Cases  on  Constitutional  Law  (2  vols.,  1895). 

Historical  and  Political  Discussions:  R.  H.  Ashley,  American  Fed- 
eral State  (1902),  ch.  v;  C.  Borgeaud,  Adoption  and  Amendment  of  Consti- 
tutions (1895),  3-25,  131-191;  G.  S.  Boutwell,  Constitution  (1895),  chs.  i, 
iii,  Ixiv;  C.  S.  Brady,  The  Methods  of  Changing  the  Constitutions  of  the  States 
(1885);  W.  I.  Dodd,  The  Revision  and  Amendment  of  State  Constitutions 
(1910),  chs.  i-v;  J.  W.  Garner,  Amendment  of  State  Constitutions  {Am. 
Pol.  Sci.  Rev.,  I,  No.  2);  A.  B.  Hart,  Actual  Government  (3d  ed.,  1908), 
§§  23,  24,  28,  29;  J.  A.  Kasson,  Evolution  of  the  Constitution  (1904),  chs.  v, 
ix;  A.  C.  McLaughlin,  Confederation  and  Constitution  (1905),  chs.  xiii- 
xvi;  C.  S.  Lobingier,  The  People^ s  Laiv  (1909),  chs.  i  x-xxvi;  E.  P.  Ober- 
holtzer.  The  Referendum  in  America  (1911),  chs.  iv-vi;  H.  P.  Judson,  The 
Essentials  of  a  Written  Constitution  (1903),  313-353;  C.  H.  Van  Tyne,  The 
American  Revolution  (1905),  ch.  ix;  J.  Bryce,  American  Commonwealth 
(rev.  ed.,  19x0),  I,  ch.  xxxii. 

211.  The  Utilization  of  the  Electorate 

It  seems  to  the  writer  that  the  old  classification  of  govern- 
mental functions  into  legislative,   executive,  and  judicial  is 
19 


274  Votes  on  Constitutions  [§  211 

defective  and  at  variance  with  facts.  But  in  no  particular  is 
this  defect  more  apparent  than  in  the  failure  to  recognize  the 
functions  performed  by  the  electorate  as  an  organic  part  of  the 
government.  Under  conditions  such  as  may  result  from  revo- 
lution, there  may  be  no  regularly  estabUshed  civil  government 
and  consequently  there  can  be  no  legally  constituted  electorate. 
At  such  times,  following  custom  or  accepting  and  acting  on  the 
conditions  prescribed  in  a  call  for  an  election  by  a  military  or 
other  leadership,  persons  possessed  of  certain  qualifications  may 
be  permitted  to  serve  as  an  electorate  —  i.e.,  perform  the  func- 
tion of  expressing  the  popular  will  with  respect  to  charters  of 
poHtical  organization  or  the  election  of  representatives  who  may 
meet  for  similar  purposes.  Either  action  would  be  entirely  in 
accord  with  the  theory  of  democratic  government.  As  a  part 
of  a  provisional  government  there  may  be  constituted  an  impro- 
vised electorate  which  in  turn  may  choose  delegates  or  repre- 
sentatives and  these  in  turn  may  formulate  charters  and 
determine  the  conditions  of  their  final  adoption.  Again, 
accepting  the  theory  of  government  by  the  consent  of  the 
governed  it  frequently  has  happened  that  persons  in  office 
may  assume  to  act  in  a  constituent  capacity  and  completely 
alter  the  form  of  government  —  without  obtaining  a  formal 
expression  by  an  electorate.  On  the  same  theory  it  is  conceiv- 
able that  a  government  might  be  carried  on  for  an  indefinite 
period  without  an  electorate,  but  in  practice  this  has  been  found 
to  be  all  too  hazardous.  The  fact  is  that  after  a  democratic 
government  has  become  well  organized,  the  electorate  is  an 
important  part  of  the  system  of  checks  and  balances  which 
keeps  the  machinery  of  state  in  adjustment  with  popular  opin- 
ion —  the  will  of  the  sovereign. 

The  functions  which  are  performed  by  the  electorate  are  to 
express  pubUc  opinion  and  to  give  to  this  expression  the  author- 
ity of  law.  The  subjects  concerning  which  opinion  is  expressed 
by  the  electorate  are: 

I.  The  adoption  afid  amendment  of  the  constitution  —  includ- 
ing the  determination  of  the  organization,  powers,  duties,  and 


§212]  Genesis  of  Referenda  275 

limitations  of  the  personnel  of  the  government  and  its  terri- 
torial jurisdiction. 

2.  Legislation  —  both  general  and  local  in  character,  taxa- 
tion, authority  to  incur  indebtedness,  etc. 

3.  Administration  —  both  state  and  local,  in  so  far  as  it  has 
to  do  with  the  ouster  or  termination  of  the  authority  of  officers. 

4.  Adjudication  —  acting  in  the  nature  of  a  court  of  last 
resort  for  the  review  of  decisions. 

In  view  of  these  practices  it  seems  to  Uttle  purpose  to  attempt 
to  allocate  the  exercise  of  the  three  functions  last  above  men- 
tioned to  one  or  another  class  of  officers;  it  seems  of  quite  as 
little  advantage  to  describe  either  the  acts  or  organization  of 
government  without  taking  into  consideration  the  electorate. 
In  chapters  XX  to  XXV  the  manner  in  which  the  electorate 
has  been  utilized  and  the  gradual  enlargement  of  its  duties 
and  responsibilities  are  described. 

212.  Genesis  of  Referenda  on  Constitutional  Provisions 

As  the  first  governments  in  several  of  the  colonies  were  elec- 
toral assemblies,  so  the  first  constitutional  convention  was 
a  congregation  of  the  electorate.  The  constituent  assembly  of 
the  Plymouth  Colony,  as  well  as  of  the  Rhode  Island  and  New 
Haven  Colonies,  was  of  this  character.  The  Plymouth  com- 
pact was  one  of  the  most  general  nature.  It  did  not  provide 
a  structure  or  corporate  agents  of  government  other  than  an 
electorate.  It  did  not  provide  for  a  grant  and  apportionment 
of  sovereign  powers.  It  was  simply  a  fundamental  compact 
whereby  they  did  "by  these  Presents  .  .  .  solemnly  and  mutu- 
ally,-in  the  Presence  of  God  and  one  another  .  .  .  covenant 
and  combine  (themselves)  together  into  a  civil  Body  PoUtick, 
for  the  better  Order  and  Preservation  and  Furtherance  of  the 
Ends,  aforesaid;  and  by  Virtue  hereof  do  enact,  constitute, 
and  frame,  such  just  and  equal  Laws,  Ordinances,  Acts,  Consti- 
tutions and  Officers,  from  time  to  time,  as  shall  be  thought  most 
meet  and  convenient  for  the  general  Good  of  the  Colony."  ^ 
1  Poore,  B.  P.,  Charters  and  ConsiiiuHons,  p.  931. 


276  Votes  on  Constitutions  [§  212 

They  left  both  the  determination  of  the  structure  of  corporate 
agents  and  the  powers  of  oflScers  to  subsequent  acts  of  the 
electorate  so  defined.  New  Haven,  however,  formulated  a 
constitution  in  which  ofiicers  were  created  separate  from  the 
electorate:  the  constitution  defined  both  the  governmental 
structure  and  official  powers.  But  the  electorate  in  all  of  the 
colonies  soon  became  too  large  and  unwieldy,  too  widely  dis- 
tributed, to  meet  conveniently  —  either  to  organize  themselves 
politically  and  to  exercise  direct  the  powers  of  government  in 
popular  convention,  or  to  agree  upon  the  structure  and  powers 
of  a  government  in  which  ofiicers  would  attend  to  the  current 
public  business.  The  people,  therefore,  in  constitution  making 
as  well  as  in  government,  from  necessity  resorted  to  the  prin- 
ciple of  representation,  through  regularly  constituted  electors. 
They  chose  delegates  whom  Uiey  empowered  to  apt  for  them. 
These  were  either  legislators  such  as  those  who  in  early  days 
assumed  amendment-making  power  or  specially  chosen  members 
of  constitutional  assemblies.  In  some  cases  the  powers  granted 
by  the  people  to  these  delegates  were  of  such  nature  that  their 
acts  in  convention  were  made  binding  upon  the  body  politic  with- 
out further  sanction;  in  other  cases  the  powers  of  the  delegates 
were  limited  to  the  formation  of  a  fundamental  charter  which 
was  to  be  referred  to  the  people,  or  to  their  representatives,  for 
adoption  or  rejection.  Thus,  in  1643,  the  articles  of  union 
framed  by  the  United  Colonies  of  New  England  were  referred 
back  to  the  legislatures  of  New  England  for  approval.^  In 
1777  the  Articles  of  Confederation  were  referred  to,  and  later 
ratified  by,  the  several  state  legislatures;  in  1787  the  con- 
stitution of  the  United  States  was  referred  for  ratification  to 
constituent  conventions  to  be  held  in  the  various  states. 

The  referendum  was  not  employed  in  the  adoption  of  the  ear- 
Uest  state  constitutions.  But,  with  the  establishment  of  per- 
manent governments,  we  find  a  desire  on  the  part  of  the  people, 
in  those  states  where  the  town  meeting  prevailed,  to  take  part 

1  Bancroft,  George,  History  of  the  United  States  (author's  last  rev.)  vol. 
i,  pp.  289-94;  McCracken,  Wm.  D.,  Swiss  Solution  of  American  Problems. 


§  2131 


Analysis  of  Referenda 


277 


directly  in  the  formation  of  the  constitution.  The  electorate 
in  their  corporate  unit  could  no  longer  get  together;  agents  or 
representatives  were  necessary  for  the  purpose  of  formulating 
a  constitutional  plan;  hence  any  direct  expression  on  the 
part  of  the  people  through  the  electorate  which  did  not  ignore 
the  principle  of  representation  must  be  by  referendum.  So 
practical  has  the  plan  proven,  and  so  wholesome  in  its  effects, 
that  from  this  humble  beginning  it  has  become  the  general 
method  of  adopting  constitutions. 

213.  Analysis  of  Constitutional  Referenda 

The  evolution  of  the  referendum  in  the  adoption  of  consti- 
tutions is  shown  in  the  table  on  next  page;  those  constitutions 
adopted  without  submission  to  a  vote  of  the  electorate  appear 
in  the  table  below  the  double  diagonal  line,  while  those  which 
were  submitted  to  the  electorate  are  shown  above  it. 

In  making  a  comparison  by  decades  from  1770  to  191 2  it 
will  be  found  that  there  has  been  a  very  decided  increase  in  the 
use  of  the  one  method  and  a  very  decided  decrease  in  the  use  of 
the  other: 


Decades 


By  the  electorate    .  .  .  . 
By  legislative  agents  .  . 


1770 

1780 

1790 

1800 

1810 

1820 

-80 

-90 

1800 

-10 

-20 

-30 

2 

2 

4 

0 

3 

4 

14 

16 

5 

I 

4 

0 

1830 
-40 

s 

3 


Decades 

1840 
-50 

1850 
-60 

i860 
-70 

1S70 
-80 

1880 
-90 

1890 
-00 

I  goo 
-10 

1910 
-12 

By  the  electorate     .  . 
By  legislative  agents 

13 
0 

14 
2 

33 
II 

14 
0 

7 
0 

3 
4 

3 
4 

3 
0 

w    i^ 


Constitutions  Subnnitted  to  a  vote  of  the  people, 

6 

11 
Ariz. 
N.  M. 

12 
Ohio 

7 
( 

o 

6 
o 

00 
Ala. 

97 
Okla. 

.08 
Mich. 

g. 

■ 

o 
o 
6 

01 
CO 

91 

Ky. 

94 

N.Y. 

95 

N.  Dak. 

Utah 

05  :i  OS     .  <3» 

1 

o 

(71 

6 

00 
00 

85 
Fla. 
89 

Ida. 

Mont. 

Wyo. 

S.  Dak. 

o 

00 

6 

00 

M- 

o 
6 

00 

o 

VD 

6 
in 

CO 

ocS>.or-.'Oc-ic3c2'o|'2St-53ic2<»g<2  9 

-1  a  o 
a,  *-* 

o 

in 

6 

CO 

*                                    *                                        // 

o 

■T 

6 

m 

00 

IS  fej  s  p^                   ^ 

OS  5 

o 

00 

6 

C\J 

00 

^  !>^  i  T..  '-'  m    d                                                        /^  2, 

o 

CM 

6 

03 

S|3|s|                             Xjs|s52^ 

o 

6 

o 

00 

A 

o 

o 
6 

01 

0.  ^  OS  t4  S  1  c  g/'o.  ^  pj  a>  >  o  p  o  ^ 

o 
c> 
6 

00 

o 

00 

6 

*     * 

75 

'Art  of 

Confed. 

*S.  C. 

*N.  H. 

76 

Va. 

N.J. 

N.Y. 

Penn. 

Md. 

Del. 

Ga. 

N.C. 

77 

Ver. 

78 

*S.C. 

♦N.H. 

■8iOA  j^indod  B  inoq;iM  pa^dopE  suo!;n;i;su 

33 

§   214] 


Provision  for  Amendments 


279 


f 


Eliminating  from  the  list  the  ordinances  of  secession  and 
those  rejected  by  Congress,  and  taking  periods  of  thirty  years, 
we  have  the  following  results: 


Periods 

1770 
-99 

1800 
-29 

1830 

-59 

i860 

-89 

1890 
-1912 

By  the  electorate    

By  legislative  agents  .... 

8 
35 

7 
S 

32 

s 

so 
0 

9 
5 

214.  Failure  to  Provide  for  Amendment 

The  history  of  the  constitutional  amendment  presents  several 
distinct  phases  of  development.  In  the  early  national  period 
the  novelty  of  self-incorporation  and  the  unsettled  condition 
of  political  ideals  appear  in  the  fact  that  five  of  the  first  thir- 
teen state  constitutions  ^  and  subsequently  four  others  made 
no  provision  whatever  for  the  modification  of  their  corporate 
structure.  This  may  have  been  on  the  theory  that  the  people 
were  supreme.  But  as  a  matter  of  fact  there  was  little  appre- 
ciation of  the  relation  of  citizenship  as  distinct  from  the 
electorate;  there  had  been  little  thought  given  to  the  desir- 
ability of  prescribing  a  method  for  either  electoral  or  official 
action  when  it  might  be  thought  desirable  to  change  the 
charter  of  incorporation  to  adapt  the  government  to  shifting 
social  and  economic  conditions.  The  first  constitutions  were 
made  after  long  popular  agitation;  the  acts  of  unofficial  as 
well  as  official  agents  being  accepted  as  an  expression  of  popular 
will.  In  only  eight  constitutions  provision  was  made  for 
amendment;  some  contained  the  prescription  that  amend- 
ments must  be  submitted  to  a  vote  of  the  electorate.^ 

^  New  Jersey,  1776;  New  York,  1777;  Pennsylvania,  1790;  South  Carolina, 
1776,  art.  X;  Virginia,  1776,  1830,  and  1850;  Georgia,  1865;  Virginia,  1864. 

*  These  states  were  Delaware,  1792,  1831;  Florida,  1838;  Georgia,  1798; 
Maryland,  1776;  Missouri,  1820;  Ohio,  1802;  South  Carolina,  1778,  1790; 
Tennessee,  1796.  To  these  may  be  added  the  reconstruction  constitution 
of  South  Carolina,  1865.  It  may  be  noticed  also  that  none  of  these  states 
had  the  town  meeting  system. 


28o  Votes  on  Constitutions  [§  215 

215.  Council  of  Censors 

The  New  England  States  recognized  the  advantage  of  pre- 
scribing a  definite  method  for  making  a  change,  and  also  the 
principle  that  government  should  be  estabhshed  and  changes 
in  the  fundamental  law  should  be  made  only  upon  the  broad- 
est representation  of  citizen  welfare.  This  method  of  proce- 
dure appealed  to  the  New  England  communities,  since  their 
whole  poUtical  Ufe  had  been  founded  on  the  principle  of  broad 
representation;  their  training  in  industrial  organization,  in  the 
township,  in  the  city,  and  the  traditions  that  they  had  brought 
with  them,  estabhshed  this  in  their  minds  as  a  poUtical  ideal 
from  which  they  could  not  well  depart.  But  their  own 
experience  was  limited  to  local  or  primitive  estabhshments 
and  precedents,  for  written  constitutions  were  few.  They 
knew  Uttle  of  any  means  of  reaching  the  people  except  through 
the  electorate  or  local  assembhes  or  through  elected  represen- 
tatives or  delegates  in  legislative  assembly  or  convention.  As 
it  was  desired  to  consult  the  popular  will,  and  to  use  an  agency 
well  suited  for  expressmg  it,  four  state  constitutions  ^  made 
provision  for  what  has  since  been  known  as  a  Coimcil  of  Cen- 
sors—  a  continuing  body  independent  of  the  government  it- 
self, having  powers  of  supervision  and  also  of  recommending 
changes  in  the  plan  of  government.  A  similar  method  was 
provided  by  the  New  Hampshire  constitutions  of  1784  and  1792, 
which  did  not  provide  for  a  Council  of  Censors,  but  merely 
for  the  election,  by  joint  ballot  of  both  houses,  of  a  council 
consisting  of  three  senators  and  three  representatives  as 
a  sort  of  board  of  advisers  to  the  Governor.-  Their  chief 
constitutional  fimction  was  that  of  calUng  conventions  for  the 
purpose  of  considering  amendments  proposed.  This  experi- 
ment, however,  proved  unsatisfactory  and  was  afterward 
abandoned. 

The  provision  for  the  Council  of  Censors  m  Vermont  is  as 

1  Pennsylvania,  1776;  Vermont,  1777,  1786,  1793. 
1  Constitutions  of  New  Hampshire,  1784,  1792. 


§215]  Council  of  Censors  281 

follows:  "In  order  that  the  freedom  of  this  Commonwealth 
may  be  preserved  inviolate  forever,  there  shall  be  chosen  by  a 
ballot,  by  the  freemen  of  this  State,  on  the  last  Wednesday  in 
March,  in  the  year  one  thousand,  seven  hundred  and  eighty- 
j5ve,  and  on  the  last  Wednesday  in  March,  in  every  seven  years 
thereafter,  thirteen  persons,  who  shall  be  chosen  in  the  same 
manner  as  the  council  is  chosen  —  except  they  shall  not  be 
out  of  the  Council  or  general  assembly  —  to  be  called  a  coun- 
cil of  censors;  who  shall  meet  together  on  the  first  Wednes- 
day of  June  next  ensuing  their  election;  the  majority  of  them 
shall  be  a  quorum  in  every  case,  except  as  to  calling  a  conven- 
tion, in  which  two-thirds  of  the  whole  number  elected  shall 
agree;  and  whose  duty  it  shall  be  to  inquire  whether  the  consti- 
tution has  been  preserved  inviolate  in  every  part:  and  whether 
the  legislative  and  executive  branches  of  the  government  have 
performed  their  duty  as  guardians  of  the  people;  or  assimied 
to  themselves,  or  exercised  other  or  greater  powers  than  they 
were  entitled  to,  by  the  constitution.  They  are  also  to  inquire 
whether  the  taxes  have  been  justly  laid  and  collected  in  all 
parts  of  this  commonwealth ;  in  what  manner  the  public  moneys 
have  been  disposed  of;  and  whether  the  laws  have  been  duly 
executed.  For  these  purposes  they  shall  have  power  to  send 
for  persons,  papers  and  records;  they  shall  have  authority  to 
pass  public  censures,  to  order  impeachments,  and  to  recommend 
to  the  legislature  the  repealing  of  such  laws  as  appear  to  them 
to  have  been  enacted  contrary  to  the  principles  of  the  consti- 
tution. These  powers  they  shall  continue  to  have  for  and  dur- 
ing the  space  of  one  year  from  the  day  of  their  election  and  no 
longer.  The  said  Council  of  Censors  shall  also  have  power  to 
call  a  convention  to  meet  within  two  years  of  their  sitting,  if 
there  appears  to  them  an  absolute  necessity  of  amending  any 
article  of  this  constitution  which  may  be  defective,  explaining 
such  as  may  be  thought  not  clearly  expressed,  and  of  adding 
such  as  are  necessary  for  the  preservation  of  the  rights  and  hap- 
piness of  the  people;  the  articles  to  be  amended  and  the  amend- 
ments proposed,  and  such  articles  as  are  proposed  to  be  added 


282  Votes  on  Constitutions  [§  216 

or  abolished,  shall  be  promulgated  at  least  six  months 
before  the  day  appointed  for  the  election  of  such  conven- 
tion, for  the  previous  consideration  of  the  people,  that  they 
may  have  an  opportunity  of  instructing  their  delegates  on 
the  subjects."  ^ 

216.  Taking  the  Sentiment  of  the  People  on  Need  of  Revision 

Massachusetts  did  not  employ  the  device  of  a  Council  of 
Censors,  but  provided  for  amendment  by  convention,  the  ini- 
tiative to  be  taken  by  the  electorate.  The  language  of  its  first 
state  constitution  in  this  relation  is  of  special  interest.  Article 
X,  chapter  VI  of  the  constitution  of  1780  is  as  follows:  "In 
order  the  more  effectually  to  adhere  to  the  principles  of  the 
constitution  and  to  correct  those  violations  which  by  any 
means  may  be  made  therein  as  well  as  to  form  such  alterations 
as  from  experience  shall  be  found  necessary,  the  general  court 
which  shall  be  in  the  year  of  our  Lord  one  thousand  seven 
hundred  and  ninety-five,  shall  issue  precepts  to  the  selectmen 
of  the  several  towns  and  to  the  assessors  of  the  unincorporate 
plantations,  directing  them  to  convene  the  quahfied  voters  of 
their  respective  towns  and  plantations  for  the  purpose  of  col- 
lecting their  sentiments  on  the  necessity  or  expediency  of  revis- 
ing the  constitution  to  make  amendments.  And,  if  it  shall 
appear  by  the  returns  made  that  two-thirds  of  the  quahfied 
voters  throughout  the  state  who  shall  assemble  and  vote  in  con- 
sequence of  the  said  precepts  are  in  favor  of  such  revision  or 
amendment,  the  general  court  (legislature)  shall  issue  precepts, 
or  direct  them  to  be  issued  from  the  secretary's  ofiice  to  the 
several  towns  to  elect  delegates  to  meet  in  convention  for  the 
purpose  aforesaid.  And  said  delegates  to  be  chosen  in  the  same 
manner  and  proportion  as  their  representatives  in  the  second 
branch  of  the  legislature  are  by  this  constitution  to  be  chosen." ^ 
This  Massachusetts  plan  was  followed  by  Kentucky,  Ohio, 
Louisiana,  Mississippi,  Maryland,  Florida,  and  Nebraska. 

1  Vermont  Constitution,  1793. 

2  Poore,  B.  P.,  Charters  and  ConslitiUions,  p.  956. 


§  217]  Kentucky  System  283 

217.  Kentucky  System  of  Gauging  Popular  Sentiment 

A  convention  of  the  electorate,  however,  was  found  to  be 
an  unsatisfactory  means  of  making  slight  changes  in  consti- 
tutions. It  was  too  cumbersome,  too  expensive,  and  in  some 
cases  the  machinery  for  calling  the  convention  was  so  complex 
as  almost  completely  to  preclude  the  making  of  amendments 
which  seemed  necessary,  but  which  did  not  constitute  a  broad 
revision.  The  constitution  of  Kentucky,  1850,  is  a  notable 
example  of  this  kind.  Its  provisions  are  as  follows:  "When 
experience  shall  point  out  the  necessity  of  amending  the  con- 
stitution, and  when  a  majority  of  all  the  members  elected  to 
each  house  of  the  general  assembly  shall,  within  the  first  twenty 
days  of  any  regular  session,  concur  in  passing  a  law  for  taking 
the  sense  of  the  good  people  of  this  commonwealth  as  to  the 
necessity  and  expediency  of  calling  a  convention,  it  shall  be 
the  duty  of  the  several  sheriffs  and  other  officers  of  elections, 
at  the  next  general  election,  ...  to  open  a  poll  for  and  make 
return  to  the  secretary  of  state  .  .  .  the  names  of  all  those 
entitled  to  vote  for  representatives  who  have  voted  for  calling 
a  convention  and  if  thereupon  it  shall  appear  that  a  majority 
of  all  citizens  of  this  state  entitled  to  vote  for  representatives 
have  voted  for  calling  a  convention,  the  general  assembly  shall, 
at  their  next  regular  session,  direct  that  a  similar  poll  shall  be 
opened  and  return  made  for  the  next  election  of  representatives; 
and  if  thereupon  it  shall  appear  that  a  majority  of  all  the  citi- 
zens of  this  state  entitled  to  vote  for  representatives  have  voted 
for  a  convention,  the  general  assembly  shall,  at  their  next  ses- 
sion, pass  a  law  calling  a  convention." 

After  making  these  provisions  for  taking  the  sense  of  the 
voters  at  two  general  elections,  and  after  requiring  that  at  each 
election  a  majority  of  all  the  voters  in  the  state  should  be  in 
favor  of  a  convention,  then  another  election  was  to  be  held  for 
the  election  of  delegates  before  the  convention  could  be  as- 
sembled. The  result  was  that  though  there  was  urgent  reason 
for  amending  the  constitution  of  1850  and  though  several  at- 


284  Votes  on  Constitutions  [§  218 

tempts  were  made,  yet  at  one  or  the  other  of  these  preliminary- 
elections  the  number  of  voters  would  be  too  small  to  meet  the 
constitutional  requirement,  and  the  amendatory  organs  could 
not  be  set  in  motion;  the  constitution  was  not  amended.  This 
method  was  incorporated  in  the  Florida  constitution  in  1865,  as 
may  be  inferred  from  all  the  circumstances  of  the  convention 
which  made  it,  for  the  very  purpose  of  making  amendment  most 
difficult  and  of  precluding  other  and  more  popular  means  of 
amendment. 

Generally  speaking,  it  may  be  said  that  the  original  purpose 
was  not  to  make  the  amendatory  process  cumbersome.  The 
rigidity  of  the  device  is  accounted  for  on  the  ground  that  the 
people  of  the  various  states  did  not  wish  their  constitutions  too 
readily  changeable;  that  though  they  wished  to  have  their 
legislative  acts  readily  changeable  in  response  to  the  popular 
will,  good  order  demanded  that  the  charter  of  government,  the 
fundamental  law,  be  not  changed  to  meet  the  whims  of  polit- 
ical factions  and  sensational  leaders;  that  above  all  things 
general  welfare  demanded  stability  of  the  government  itself. 
At  the  same  time  they  wished  to  make  all  provisions  for  change, 
for  adaptation  to  progress,  that  were  wholesome.  They  there- 
fore resorted  to  experiments. 

218.  Submission  of  Amendments  by  Legislatures 

The  ideas  both  of  a  Council  of  Censors  and  a  convention  of 
constitutional  delegates  to  be  called  by  electors  originated  in 
the  notion  that  change  in  government  should  not  come  through 
those  who  made  the  laws  or  exercised  the  judicial  and  adminis- 
trative functions.  Both  of  these  experiments  proved  unsatis- 
factory and  were  afterward  abandoned  for  better  devices.  With 
all  the  imperfections  of  these  means  for  reaching  the  end  in 
view  we  are  indebted  to  the  New  England  States — the  home  of 
the  to^vn  meeting  —  for  the  part  which  they  took  in  distinguish- 
ing constitutional  forms  of  law,  and  for  their  insistence  on  the 
rights  of  citizens  to  be  more  nearly  represented  by  their  elec- 
torate in  the  establishment  of  their  government. 


§  2i8]  Submission  of  Amendments  285 

The  device  which  was  finally  evolved  from  this  early  experience 
was  that  wherein  the  members  of  the  legislature  are  employed 
in  the  capacity  of  constitutional  delegates  without  organ- 
izing a  special  election,  those  representatives  being  empowered 
to  initiate  amendments.  This  device  has  taken  several  forms. 
In  Connecticut,  by  the  constitution  of  1818,  article  XI,  it  was 
provided  that  "whenever  a  majority  of  the  house  of  represen- 
tatives shall  deem  it  necessary  to  alter  or  amend  the  consti- 
tution they  may  propose  alterations  or  amendments;  which 
proposed  amendments  shall  be  continued  to  the  next  general 
assembly,"  but  provided  that  each  house  might  act  on  the  final 
passage.  In  Massachusetts  a  peculiar  adaptation  of  the 
principle  is  found  in  a  provision  requiring  a  majority  of  the 
senate  and  a  two-thirds  vote  of  the  house  to  formulate  an 
amendment.  ^  It  would  seem  that  in  Connecticut  the  house  was 
preferred  as  the  most  suitable  body  for  initiating  an  amendment, 
because  it  was  closer  to  the  people,  while  in  Massachusetts  a 
two-thirds  vote  was  required  of  that  body  and  only  a  majority 
in  the  senate,  because  the  senate  was  the  more  conservative. 
Omitting,  however,  these  two  "sports,"  we  may  classify  the 
provisions  for  amendment  where  the  legislature  serves  in  the 
capacity  of  constitutional  convention  into  three  groups,  by  pro- 
cesses: 

(i)  Amendment  by  (a)  legislative  initiative,  (b)  publication, 
(c)  a  second  legislative  action,  (d)  a  second  publication,  (e)  a 
vote  of  the  electorate. 

(2)  Amendment  by  (a)  legislative  initiative,  (6)  publication, 
(c)  vote  of  the  electorate,  (d)  a  second  legislative  action. 

(3)  Amendment  by  (a)  legislative  initiative,  (b)  publication, 
(c)  a  vote  of  the  electorate. 

There  may  be  some  sameness  in  point  of  the  details  of  publi- 
cation and  legislation,  but  the  essential  difference  appears  in 
this  —  that  in  the  first  there  are  two  legislative  acts  by  two 
separate  legislatures  required  before  submission  to  the  elec- 
torate; in  the  second,  one  legislative  act  by  one  legislature  is 
'  Mass.  Amendment,' 1822,  IX. 


286  Votes  on  Constitutions  [§219 

required  before  submission,  and  another  by  a  second  legisla- 
ture after  submission;  while  in  the  third  there  is  only  one  legis- 
lative act  required,  and  that  before  submission.  Taking  them 
up  in  the  order  above  set  forth  we  can  observe  the  evolution  of 
the  rule  of  law-making  in  its  adaptation  to  what  has  been 
considered  the  rule  of  progress. 

219.  Amendments  by  Two  Legislative  Acts  and  Subsequent 
Popular  Vote 

In  the  first  class  there  are  thirty-one  constitutions.  Follow- 
ing each  of  the  steps  above  indicated  they  may  be  classified 
as  follows:  (a)  the  initiative  in  twenty-two  is  by  majority  of 
each  house,  while  in  five  it  is  by  a  two-thirds  vote  of  all  the 
members,  in  three  by  three-fifths  vote  of  each  house,  and  in 
Massachusetts  and  Connecticut  as  above  stated. 

{b)  As  to  the  first  publication,  the  most  usual  time  prescribed 
is  three  months,  although  in  two  six  months  are  prescribed,  and 
in  one  "four  consecutive  weeks." 

(c)  The  second  legislative  action  prescribed  in  twenty  of  these 
state  constitutions  is  by  a  majority  of  each  house;  in  eleven 
however,  a  two-thirds  vote  of  each  house  was  required. 

{d)  The  second  publication  prior  to  submission  of  the  amend- 
ment to  popular  electoral  vote  is  usually  left  to  the  prescrip- 
tion of  the  legislature,  although  Kansas,  in  the  constitution  of 
1855,  required  that  pubUcation  should  be  made  "for  at  least 
six  months  prior  to  the  next  general  election,  at  which  election 
such  proposed  amendment  shall  be  submitted."  And  in  Loui- 
siana, in  the  constitution  of  1845,  three  months'  publication  was 
prescribed. 

(e)  As  to  the  provisions  for  the  submission  of  the  proposed 
amendments  to  the  electorate,  in  nineteen  of  the  constitutions 
a  majority  of  all  voting  thereon  was  required;  in  four,  a  major- 
ity of  all  voting  at  that  election ;  in  three,  a  majority  voting  for 
representatives;  in  one,  a  majority  voting  at  town  meetings; 
in  two,  an  absolute  majority  of  all  electors;  and  in  one,  three- 
fifths  of  all  voting  at  town  meeting. 


§  22o]  Submission  of  Amendments  287 


2.20.  Amendments  by  Legislative  Act,  Popular  Vote  and  a 
Second  Legislative  Act 

In  the  second  class  the  constitutions  of  only  three  states 
are  found,  viz.,  Texas,  Alabama,  and  Delaware.^  This  may 
be  considered  a  little  more  simple  method  of  making  amend- 
ments. Instead  of  requiring  the  amendment,  (a)  to  be  passed 
by  the  legislature,  (b)  to  be  published  and  made  an  issue  in  the 
next  legislative  election,  (c)  to  be  passed  a  second  time  by  the 
legislature  elected  on  the  issue,  (d)  to  be  repubUshed  as  passed 
a  second  time,  (e)  to  be  balloted  on  by  the  electorate,  it  shortens 
the  process  both  in  time  and  detail  and  makes  the  popular  elec- 
tion following  the  first  legislative  action  serve  a  double  purpose; 
i.e.,  that  of  passing  on  the  amendment  and  also  of  electing  a 
second  house  on  this  special  issue.  This  device  was  contrary 
to  the  generally  accepted  theory  of  constitutional  law;  viz., 
that  the  electorate  as  an  agency  of  government  is  superior  to 
the  legislature.  The  electorate  having  expressed  the  will  of 
the  people  on  the  amendment  as  formulated  by  the  first  legis- 
lature, it  is  held  not  only  an  unnecessary,  but  also  an  unsafe 
provision  to  arm  the  legislature,  the  law-maldng  organ  of 
government  which  might  be  affected  by  such  amendment,  with 
power  to  defeat  the  sovereign  will  as  expressed  by  the 
electorate. 

Whatever  may  be  said  of  the  soundness  of  this  theory,  the 
method  rests  on  an  assumption  which  is  unsound;  viz.,  that  the 
electorate  is  not  to  be  trusted  as  an  agency  for  expressing  pop- 
ular will,  and  that  the  submission  to  a  citizen  electoral  vote  is 
merely  a  formal  or  convenient  way  of  getting  the  subject 
discussed  for  the  enlightenment  of  the  legislator.  This 
assumption  clearly  appears  in  the  constitutional  provisions. 
The  first  constitution  of  this  kind  ^  reads  as  follows: 

"A  general  assembly,  whenever  two-thirds  of  each  house 
shall  deem  it  necessary,  may  propose  amendments  to  this  con- 

'  Alabama,  1819, 1865, 1867;  Texas,  1845, 1866, 1868;  Delaware,  1897. 
*  Alabama,  18 19. 


288  Votes  on  Constitutions  [§  221 

stitution,  which  proposed  amendments  shall  be  duly  pubUshed 
in  print  at  least  three -months  before  the  next  general  election 
of  representatives,  for  the  consideration  of  the  people,  and  it 
shall  be  the  duty  of  the  several  returning  officers,  at  the  next 
general  election  which  shall  be  held  for  representatives,  to  open 
a  poll  for  and  make  a  return  to  the  secretary  of  state  for  the 
time  being,  of  the  names  of  all  those  voting  for  representatives, 
who  have  voted  on  such  proposed  amendments,  and  if  there- 
upon it  shall  appear  that  a  majority  of  all  the  citizens  of  this 
state,  voting  for  representatives,  have  voted  in  favor  of  such 
proposed  amendments  and  two-thirds  of  each  house  of  the 
next  general  assembly,  shall,  after  such  an  election,  and  before 
another,  ratify  the  same  amendments  by  yeas  and  nays,  they 
shall  be  vaHd,  to  all  intents  and  purposes,  as  parts  of  this  con- 
stitution." 

221.   Amendments  by  One  Legislative  Act  and  Popular  Vote 

The  popular  will  having  expressed  itself  through  a  citizen 
electorate,  it  was  simply  a  question  of  time  when  these  useless 
and  contradictory  after  acts  would  be  dropped  and  the  method 
of  amendment  made  to  involve  simply  a  legislative  initiative, 
pubUcation,  and  submission  to  the  quahfied  voters  for  ratifica- 
tion and  adoption.  In  the  third  class  thirty-five  constitutions 
are  found.  With  respect  to  the  formal  steps  to  be  taken 
it  is  to  be  noted:  (a)  that  of  these  only  six  allow  an  amendment 
to  be  initiated  by  a  majority  vote  of  each  house,  while  in  twenty- 
eight  a  vote  greater  than  a  majority  is  required;  twenty  provid- 
ing for  a  two-thirds  vote  and  eight  for  a  three-fifths  vote  of  each 
house;  (b)  that  the  prevailing  length  of  pubhcation  is  three 
months,  only  six  providing  for  a  different  time,  (c)  That  all 
prescribe  a  majority  vote  of  electors,  this  majority  to  be  ascer- 
tained, however,  in  several  different  ways;  twenty  prescribe 
that  there  shall  be  a  majority  of  electors  "  voting  thereon,"  six 
a  majority  voting  "for  representatives,"  four  a  majority  vot- 
ing "at  said  election,"  three  an  absolute  majority  of  electors, 
and  two  simply  provide  for  submission,  without  specifying; 


§  222]  Use  of  Methods  289 

therefore  in  these  last  the  majority  required  would  depend  on 
judicial  interpretation. 

In  this  third  class  of  amendatory  devices  above  described  it 
would  appear  that  the  details  are  very  much  reduced  and  the 
time  shortened  by  at  least  one  legislative  period.  While  the 
rule  of  progress  is  subserved  by  making  amendatory  provisions 
that  will  allow  the  governmental  structure  to  be  modified  to 
suit  the  social  and  economic  demands  of  the  time,  the  rule  of 
law  and  order  is  also  preserved  by  placing  such  change  beyond 
the  reach  of  designing  partisans  or  governmental  agents  who 
might  seek  to  rely  on  popular  emotion  or  misrepresentations 
to  secure  an  end. 

As  shown  above,  the  initiative  in  nearly  all  of  these  consti- 
tutions can  be  taken  only  by  a  two-thirds  or  a  three-fifths 
vote  of  each  branch  of  the  legislature;  the  issue  is  then  put  to 
the  people,  but  cannot  be  voted  on  by  the  electorate  until  after 
from  one  or  two  years  have  elapsed,  thus  giving  time  for  mature 
deliberation  and  the  subsidence  of  any  popular  fervor  that 
might  have  given  rise  to  the  proposed  amendment.  Change  by 
act  of  the  established  government  is  prevented  by  requiring  a 
vote  of  the  electorate,  but  in  most  of  those  constitutions  a  major- 
ity of  those  voting  is  sufficient  to  ratify  and  adopt.  It  has  been 
found  by  experience  that  it  is  much  more  safe  to  presume  that 
those  not  voting  do  not  oppose  an  amendment  than  to  require 
the  actual  assent  of  an  absolute  majority  of  all  voters,  for  the 
reason  that  the  electors  are  not  apt  to  give  attention  to  ballot- 
ing on  amendments  during  the  excitement  of  an  election  unless 
they  deem  them  opposed  to  their  welfare. 

222.   Comparison  of  Use  of  Three  Methods 

Comparing  these  three  classes  chronologically,  we  find  that 
the  amendatory  devices  of  the  first  procedure  prevailed  in  the 
second  quarter  of  the  century;  that  the  second  procedure  was 
chiefly  employed  in  the  sixties,  and  that  the  third  class  pre- 
vailed in  the  third  and  fourth  quarters  of  the  century.  Arrang- 
ing these  procedures  .for  constitutional   amendment  in  their 


290 


Votes  on  Constitutions 


[§  222 


respective  classes  by  decades,  the  comparison  of  dates  of  intro- 
duction of  the  three  types  of  methods  of  amendment  are  as 
follows: 


Year 

1800 

1810 

1820 

1830 

1840 

1850 

i860 

1870 

1880 

1890 

1900 

19 10 

-09 

-19 

-29 

-39 

-49 

-59 

-69 

-79 

-89 

-99 

1909 

I 

-12 

Class  I 

_ 

_ 

2 

4 

7 

4 

S 

3 

_ 

I 

_ 

Class  II  ...  . 

- 

- 

I 

- 

I 

- 

4 

- 

- 

I 

- 

- 

Class  III  ... 

— 

I 

~ 

I 

~ 

6 

7 

II 

6 

5 

4 

3 

Taking  the  prominent  periods  of  their  use,  we  find  that  all 
but  four  procedures  of  the  first  class  were  adopted  in  the  fifty 
years  between  1820  and  1869,  inclusive,  while  all  but  two  of 
the  third  class  were  adopted  within  the  period  from  1850  to  191 2, 
inclusive.  Comparing  the  procedures  of  amendment  from  the 
standpoint  of  complexity,  it  appears  that  the  first  class  —  that 
is,  the  first  from  an  evolutionary  standpoint  —  is  much  more 
involved  than  the  second,  and  that  the  second  is  more  involved 
than  the  third;  that  there  has  been  a  progression  in  the  direc- 
tion of  greater  simplicity  of  procedure  in  making  constitutional 
amendments.  The  last  or  third  class  has  been  found  also  to 
be  the  most  expeditious;  it  is  operated  with  greater  economy 
both  of  time  and  effort.  At  the  same  time  the  experience  of 
the  past  has  proven  that  this  more  simple  and  more  direct 
method  is  a  safe  device  for  constitutional  amendment;  that 
it  provides  a  means  of  adapting  our  institutions  to  the  pro- 
gress of  the  age  with  greater  advantage  to  society  than  any  of 
the  preceding  devices. 

Summarizing  the  evolution  of  our  institutions  relative  to 
the  provision  made  for  current  adjustment  of  the  frame  of  gov- 
ernment and  for  modifying  its  structure  to  adapt  it  to  the  grow- 
ing needs  of  society,  we  find:  (i)  Some  of  our  first  constitutions 
were  framed  and  adopted  by  electoral  assemblies,  but  this  method 
could  not  possibly  be  employed  in  large  and  widely  scattered 
communities.     (2)  For  the  larger  and  more  widely  distributed 


§222]  Use  of  Methods  291 

political  bodies  the  representative  principle  was  made  use  of. 
(3)  In  the  first  part  of  our  constitutional  period  the  represen- 
tative, or  delegate,  was  intrusted  with  this  work.  (4)  Grad- 
ually as  the  representative  and  the  delegate  became  further 
removed  from  the  people,  and  as  the  interests  of  society  grew 
more  complex,  as  has  been  thought  to  be  advantageous  to  the 
citizen  will  to  be  represented  by  an  electorate  through  the 
referendum.  (5)  Owing  to  delays  incident  to  this  method,  a  pro- 
cedure has  been  developed  which  enables  constitutional  provi- 
sions to  be  amended  by  initiative  and  referendum.  (6)  In  the 
interest  of  still  further  simplicity  it  has  been  proposed  that  any 
court  decision  declaring  a  law  unconstitutional  may  be  submitted 
to  popular  vote  at  a  next  regular  election  for  representatives. 


CHAPTER    XXI 

POPULAR     VOTES    ON    LEGISLATION    WITHOUT 
CONSTITUTIONAL  PROVISIONS 

223.  References 

Bibliography:    Same  as  for  ch.  xxiv. 

General  Works:  T.  M.  Cooley,  Constitutional  Limitations  (7th  ed., 
1903))  §§  2,  3,  117-125;  C.  S.  Lobingier,  The  People's  Law  (1909),  chs. 
xxvii,  xxviii;  E.  P.  Oberholtzer,  The  Referendum  in  America  (191 1),  ch. 
viii;  J.  Bryce,  American  Commonwealth,  I,  ch.  xxxix;  E.  M.  Hartwell, 
Referenda  in  Massachusetts,  1776-1907  (Nat.  Munic.  League,  Proceedings, 
igo9,  334-349);  C.  H.  Talbot,  The  Initiative  and  Referendum  (Wis.  Compar- 
ative Legislation  Bulletin,  No.  21,  1910),  8-12;  H.  C.  Black,  Constitutional 
Law  (2d  ed.,  1897),  §  105. 

224.   Creation  of  the  Federal  Government 

Provisions  for  expressing  the  will  of  the  people  through 
the  electorate,  so  far  as  they  relate  to  legislation  and  funda- 
mental measures,  have  been  of  two  kinds:  those  made  by  legis- 
latures and  those  made  by  constitutional  conventions.  The 
legal  basis  for  the  first  class  is  found  in  the  unwritten  con- 
stitution; provisions  for  action  by  constitutional  conventions 
usually  appear  in  the  written  constitutions.  In  both  classes 
the  action  by  the  electorate  is  made  possible  by  referendum  or 
a  formal  submission  to  votes.  Historically  the  earlier  pro- 
cedure was  provided  for  either  by  statute  or  was  a  part  of  the 
unwritten  constitutional  provisions. 

In  his  treatise  on  The  Law  of  the  Constitution,  Mr.  Dicey 
defines  constitutional  law  as  follows:  "Constitutional  law, 
as  the  term  is  used  in  England,  appears  to  include  all  rules 
which  directly  or  indirectly  affect  the  distribution  or  the  exer- 
cise of  the  sovereign  power  of  the  state.  Hence  it  includes 
(among  other  things)  all  rules  which  define  the  members  of  the 
sovereign  power,  all  rules  which  regulate  the  relation  of  such 


§  224]  Federal  Government  293 

members  to  each  other,  or  which  determine  the  mode  in  which 
the  sovereign  power,  or  members  thereof,  exercise  this  author- 
ity." 1 

Mr.  Cooley  also  defines  a  constitution  as  ''The  fundamental 
law  of  a  State  .  .  .  regulating  the  division  of  the  sovereign 
powers  and  directing  to  what  persons  each  of  these  powers  is 
to  be  confined,  and  the  manner  in  which  it  is  to  be  exercised 
.  .  .  that  body  of  rules  and  maxims  in  accordance  with  which 
the  powers  of  sovereignty  are  habitually  exercised."  But  later 
the  same  author  says:  "In  American  constitutional  law  the 
word  constitution  is  used  in  a  restricted  sense,  as  implying 
the  wTitten  instrument  agreed  upon  by  the  people  of  the  Union 
or  of  any  one  of  the  States."  This  later  "  American  "  use  of  the 
word  is  wholly  illogical  and  has  led  to  many  erroneous  conclu- 
sions. There  is  no  reason  why  the  provision  made  for  the  ofl5ce 
of  state  comptroller  or  auditor, when  found  in  a  "written  instru- 
ment" agreed  upon  by  the  people,  should  be  held  constitutional, 
while  an  identical  provision  found  in  the  statutes,  "the  people" 
having  delegated  the  power  of  making  such  provision  to  the 
legislature,  should  be  held  not  constitutional.  By  every  rule 
of  logic  all  provisions  apportioning  the  exercise  of  sovereign 
powers,  directing  to  what  persons  these  powers  are  to  be  con- 
fined and  the  manner  in  which  they  are  to  be  regulated,  are 
equally  constitutional  provisions,  whether  found  in  a  "written 
instrument,"  in  statutes,  in  the  common  law  or  the  immemorial 
customs  of  an  ofifice.^  While  it  will  be  impossible  to  change 
the  labels  that  have  been  put  on  those  fundamental  documents 
which  have  been  formally  adopted  as  "constitutions,"  it 
would  have  added  much  to  clarity  of  thinking  if  they  had 
been  called  "charters"  which  would  be  entirely  consistent 
with  our  concept  of  populaj  sovereignty. 

A  federal  government  based  on  treaty  is  wholly  inadequate. 
Hence  for  a  democratic  federation  it  is  indispensable  that  cer- 
tain of  the  fundamental  relations  should  be  by  agreement  of 

'  Dicey,  The  Law  of  the  Constitution,  p.  24. 
^Cooley,  T.  M.,  Constitutional  Limitations,  sees.  2,  3. 


294  Popular  Legislation  [§  225 

the  broad  electorate  representing  the  citizenship  of  the  territory 
to  be  governed.  This  places  these  constitutional  provisions 
beyond  and  above  the  will  of  the  people  of  a  particular  state 
or  part  of  the  federation.  This  fact  was  recognized  by  the 
German  people  in  the  formation  of  the  empire,  and  by  the 
Swiss  in  the  establishment  of  their  federal  government.  And 
it  is  thought  that  the  same  fact  must  be  recognized  and  adopted 
by  Great  Britain  before  a  federated  government,  broad  enough 
to  include  the  colonies,  will  be  possible.  After  the  Revolution, 
Americans  realized  the  need  of  a  central  government  which 
might  have  power  to  bind  all  of  the  states  even  to  the  extent 
of  coercion.  To  assign  such  powers  to  a  central  government 
would  have  abolished  the  state  governments  unless  the  extent 
of  its  powers  and  manner  of  their  exercise  were  carefully  defined 
and  limited. 

The  establishment  of  the  federal  constitution  in  the  nature 
of  things  operated  to  modify  the  previous  constitutions  of  the 
state  governments  federated;  thus  the  act  of  the  adoption  of 
the  constitution  of  the  United  States  changed  both  the  written 
and  unwritten  constitution  of  each  of  the  several  states.  In  so 
far  as  neither  the  federal  nor  state  constitutions  provided  for 
corporate  organization  for  the  exercise  of  powers,  the  unwritten 
constitutions  remained  in  force.  Under  our  complex  frame  of 
government,  federal  and  state,  the  state  legislatures,  by  implica- 
tion or  express  grant,  retained  full  power  to  make  any  constitu- 
tional provisions  and  modifications  which  were  not  inhibited 
by  the  federal  written  constitution;  further  than  this,  in  so 
far  as  the  organic  law  was  not  already  formulated  and  declared 
by  the  state  legislature,  the  common  law,  judicial  precedents, 
and  immemorial  customs  were  recognized  as  part  of  the  estab- 
lished order. 

225.  Hierarchy  of  Governmental  Authorities 

After  the  adoption  of  the  federal  plan  all  government  in  the 
United  States  was  distributed  in  a  series  of  strata  arranged  in 
order  of  legal  precedence  as  follows: 


§  22s]  Hierarchy  of  Authorities  295 

1.  The  written  charter  entitled  the  "Constitution  of  the 
United  States,"  in  so  far  as  it  applied,  and  the  statutes  and 
treaties  made  in  pursuance  of  the  federal  constitution. 

2.  Executive  and  administrative  rules,  orders,  and  opinions 
of  federal  officials  acting  under  authority  defined  by  the  federal 
constitution. 

3.  The  written  charter  entitled  the  "constitution"  of  each 
of  the  several  states,  in  so  far  as  it  made  provision  for  the 
structure  and  exercise  of  the  powers  of  government. 

4.  The  structural  and  organic  provisions  contained  in  stat- 
utes of  the  state  governments,  including  the  "charters"  of 
municipalities,  each  operating  within  its  own  jurisdiction. 

5.  The  structural  and  organic  rules  of  common  law  and 
judicial  precedent  so  far  as  not  altered  by  state  constitutions  or 
statutes. 

6.  Local  or  municipal  ordinances  and  administrative  acts, 
within  the  authority  conferred  by  the  state  governments. 

7.  The  structural  and  organic  rules  contained  in  immemorial 
customs  of  office  and  government,  till  altered  by  affirmative 
action  of  federal,  state,  or  local  governmental  agencies. 

In  1789  the  government  was  established  and  has  since  been 
exercised  under  and  according  to  this  highly  complex  constitu- 
tion. The  consideration  of  the  constitutionality  of  an  act  may 
require  that  all  these  constitutional  provisions  be  taken  into 
account  and  in  order  of  legal  precedence;  hence  the  difficulty 
of  construction.  The  first  and  third  of  these  forms  of  law  are 
commonly  designated  as  the  "written  constitution."  As  dis- 
tinguished from  the  "unwritten  constitution,"  however,  the 
first,  the  third,  and  the  fourth  must  be  included  since  all 
of  these  '  written  instruments"  contain  organic  provisions. 
The  other  five  forms  of  constitutional  law,  for  convenience, 
may  be  designated  the  unwritten  constitution,  because  de- 
pendent on  an  unwritten  or  customary  exercise  of  power. 

By  this  general  system  of  "written  constitutions"  the  general 
legislative  powers  in  the  federal  government  were  given  to 
Congress  and  the  general  legislative  powers  of  the  several 


296  Popular  Legislation  [§  226 

states  were  left  to  the  several  state  legislatures.  These  were 
made  the  constitutional  organs,  the  only  lawful  agents  of  the 
community  for  the  enactment  of  general  laws  for  the  states 
and  the  nation.  Any  attempt  made  by  any  other  organ  or 
body  to  make  general  laws  and  any  attempt  made  by  these 
agencies  to  delegate  the  exercise  of  their  powers  specifically 
granted  would  be  null  and  void.  Therefore,  except  as  may  here- 
after be  specifically  provided  within  these  constitutions,  or 
those  which  may  be  subsequently  adopted  by  popular  vote, 
no  statute  providing  for  the  co-operation  of  the  voters  in 
general  legislation  for  the  several  states  or  the  United  States 
could  be  valid. 

With  respect  to  the  local  administrative  subdivisions  of  the 
United  States  and  the  several  states,  few  provisions  were  made 
in  the  written  constitutions  for  their  organization  and  govern- 
ment. Therefore,  concerning  the  organization  and  powers  of 
all  local  and  administrative  agents  not  specifically  mentioned 
or  prohibited  by  the  written  constitutions,  the  federal  and  state 
governments  are  free  to  act  according  to  the  imwritten  con- 
stitutions. 

1.  If  a  sheriff  has  performed  some  act  and  his  power  is  ques- 
tioned, the  determination  of  his  powers  and  the  test  of  their 
legal  exercise  must  be  found  in  all  the  rules  governing  the  office. 
If  his  act  is  supported  by  any  of  them,  and  the  rule  or  provision 
under  which  he  acts  does  no  violence  to  a  higher  rule,  his  act 
would  be  held  vaUd. 

2.  While  statute  law  and  other  formal  acts  of  local  legisla- 
tures, such  as  ordinances,  are  written,  the  rule  for  the  exercise 
of  the  power  which  gives  them  vaUdity  is  largely  a  matter 
of  unwritten  or  customary  law.  It  may  be  said  to  be  a  common 
law,  or  inherent  power  of  the  local  legislature,  which  may  be 
exercised  till  annulled  by  the  written  constitution. 

226.  Evolution  of  the  Popular  Vote  in  States 

As  has  already  been  stated  in  several  of  the  original  small 
commimities,  the  government  was  an  assembly  of  all  the  voters. 


§§227,228]  Votes  on  Schools  297 

In  several  communities,  as  Virginia,  at  the  outset;  in  others 
when  the  political  organization  had  broadened  so  that  it  became 
inconvenient  for  all  of  the  people  to  assemble,  the  representa- 
tive plan  was  everywhere  adopted.  In  the  organization  of  the 
complex  and  concentrically  widening  system  of  government, 
composed  of  the  precinct,  the  ward,  the  school  district,  the 
township,  the  village  or  town,  the  city,  the  drainage  or  sanitary 
district,  the  county,  the  legislative  or  judicial  district,  the  state, 
the  empire,  assemblies  of  voters  are  in  some  instances  still 
retained,  as  in  the  school  district,  the  township,  and  the  New 
England  town  or  village;  but  as  to  all  other  subdivisions  they 
were  abandoned.  It  was  often  desirable  to  consult  the  will  of 
the  people  upon  particular  legislative  and  administrative  acts; 
and  so  far  as  there  were  no  specific  provisions  in  the  written  con- 
stitution for  the  organization  of  ofl&ces  and  the  exercise  of 
powers  within  the  local  units,  the  legislature  of  the  state  under 
the  unwritten  constitution  could  legislate  in  any  way  it  liked. 
It  not  unfrequently  did  provide  for  an  expression  of  the 
popular  will  by  a  special  vote  on  the  proposed  measure;  that 
is,  by  what  is  now  called  the  referendum. 

227.  Rare  Popular  Votes  under  Federal  Law 

Furthermore  the  people  often  took  part  in  acts  of  legislation 
and  administration  in  the  early  period  by  petition;  that  is, 
by  what  we  now  call  the  initiative.  Both  the  initiative  and 
referendum  were  used  to  determine  questions  relating  to :  the 
incorporation  of  towns;  the  organization  of  school  districts, 
towns,  counties,  and  other  local  units;  borrowing  of  money;  sub- 
scription to  stock  in  business  corporations  and  public  improve- 
ments. As  governing  bodies  came  to  be  less  in  touch  with  the 
people,  appeals  to  the  people  were  more  frequently  employed. 

228.  Popular  Votes  on  Schools 

Down  to  1 86 1  few  and  simple  were  the  questions  submitted 
by  the  states  to  the  electors  —  always  excepting  changes  of 
the  constitution.     Some  of  them  indicate  a  transition  from  a 


298  Popular  Legislation  [§  228 

system  of  local  legislation  to  one  of  general  law  subject  to  local 
option;  as,  for  example,  the  school  law  of  Maine  passed  in  1822.^ 
"Be  it  further  enacted,  That  the  several  towns  and  plantations 
be,  and  hereby  are,  authorized  and  empowered  to  determine 
the  number  and  define  the  hmits  of  the  school  districts  within 
the  same.  .  .  .  That  the  inhabitants  of  any  school  district 
qualified  to  vote  in  town  affairs  be,  and  they  hereby  are,  em- 
powered, at  any  district  meeting  called  in  manner  herein  pro- 
vided, to  raise  money  for  the  purpose  of  erecting,  repairing, 
purchasing  or  removing  a  school  house  and  of  purchasing  land 
upon  which  the  same  may  stand,  and  utensils  therefor,  and  to 
determine  whether  the  said  school  house  shall  be  erected  or 
located  in  said  district;  and  also  to  determine  at  what  age  the 
youth  within  such  district  may  be  admitted  into  a  school  kept 
by  a  master  or  mistress,  and  whether  any  scholars  shall  be 
admitted  into  such  school  from  other  school  districts."  In 
case  the  electors  voted  in  favor  of  these  propositions  certain 
other  provisions  might  be  invoked  to  carry  these  first,  or  optional 
provisions,  into  effect. 

To  the  same  purpose  was  a  Massachusetts  statute  of  1826 
which  recites:  "The  inhabitants  of  every  town  may,  if  they 
shall  think  it  expedient,  carry  into  effect  the  provisions  of  the 
twenty-eighth  section,  at  the  common  expense  of  the  town  so 
far  as  relates  to  providing  school  houses  for  the  school  dis- 
tricts of  the  town."  The  decision  having  been  made,  then 
certain  other  provisions  relative  to  the  manner  of  raising  taxes 
would  become  effective.  During  the  same  year  (1826)  the 
legislature  of  Maryland  passed  "an  act  for  the  establishment 
and  support  of  public  free  schools  in  the  first  election  district 
of  Baltimore  County,"  ^  which  was  purely  referendal.  The 
provision  reads:  "Whereas,  it  has  been  justly  represented  by 
the  inhabitants  of  the  first  election  district  of  Baltimore  county 
to  the  legislature  of  Maryland  that  a  system  of  public  schools, 
which  should  be  supported  by  a  scale  of  taxation  and  depend 
for  its  operation  within  said  district  upon  the  future  decision 
^  Maine  Laws,  1822.  *  Laws,  1S26,  March  i,  ch.  142. 


§§  229, 230]  Social  Questions  299 

of  a  majority  of  the  voters  at  the  time  actually  residing  in  such 
district,"  etc.  The  law  then  provides  for  a  free  school  system 
subject  to  adoption  by  a  vote  of  the  majority  of  the  electors. 
In  1825  the  legislature  of  Maryland  passed  a  general  referenda! 
act  for  the  estabhshment  of  primary  schools  to  the  following 
effect:  "Be  it  enacted,  That  at  the  next  election  of  delegates 
of  the  General  Assembly,  every  voter,  when  he  ofifers  to  vote, 
shall  be  required  by  the  judges  of  election  to  state  whether  he 
is  for  or  against  the  establishment  of  primary  schools,  and 
make  return  thereof  to  the  legislature  during  the  first  week  of 
the  session,  and  if  a  majority  of  the  said  votes  in  any  county 
shall  be  in  favor  of  the  establishment  of  primary  schools,  as 
herein  provided  for,  then,  and  in  that  case,  the  said  act  shall  be 
valid  for  such  county  or  counties,  otherwise  of  no  effect  whatever. 
"And  be  it  enacted,  That  if  a  majority  of  the  voters  of  any 
county  in  the  State  shall  be  against  the  establishment  of  pri- 
mary schools  then,  in  that  case,  the  said  act  shall  be  void  as  to 
that  county." 

229.  Popular  Votes  on  Territorial  Questions 

In  18 16  an  election  was  held  in  that  part  of  Massachusetts 
afterward  set  off  as  the  state  of  Maine  for  the  purpose  of  deter- 
mining, through  the  electorate,  whether  the  people  favored  a 
separation  from  the  old  state;  and  in  18 19  the  legislature  of 
Massachusetts  authorized  a  general  election  on  the  question  of 
whether  the  "District  of  Maine  should  become  a  separate  and 
independent  State,"  the  condition  being  that,  in  case  the  proposi- 
tion received  1500  votes,  a  convention  should  be  chosen  to 
frame  a  constitution. 

In  1826  the  legislature  passed  a  law  fixing  the  jurisdiction 
of  the  courts  of  Boston,  which  required  a  favorable  vote  of  the 
voters  of  the  city  before  it  should  go  into  effect. 

230.  Popular  Votes  on  Social  and  Moral  Questions 

After  1840  arose  a  strong  sentiment  against  the  liquor  traffic 
and  the  referendum  was  frequently  called  in  to  find  out  the 


300  Popular  Legislation  [§  231 

popular  will  on  the  adoption  of  local  liquor  laws.  For  example, 
in  Rhode  Island  by  the  act  of  1845  provision  was  made  that 
"no  licenses  shall  be  granted  for  the  retailing  of  wines  or  strong 
liquors  in  any  town  or  city  of  this  State,  when  the  electors  of 
such  town  or  city  quaUfied  to  vote  for  general  officers,  shall, 
at  the  annual  town  or  ward  meeting  held  for  the  election  of 
town  ofl&cers,  decide  that  no  such  Ucenses  for  retailing  as  afore- 
said shall  be  granted  for  that  year."  By  the  middle  of  the  cen- 
tury this  referendum  became  frequent,  including  the  location  of 
county  seats,  the  division  of  counties,  and  other  Hke  subjects. 

The  referendum  stood  the  test  of  experience,  for  it  was  an 
effective  check  on  acts  of  government  adverse  to  the  public 
interests.  Hence  each  year  new  uses  and  new  subjects  were 
found  for  the  co-operation  of  the  voters  in  local  legislation 
and  administration.  Through  new  constitutions  or  amend- 
ments, acts  of  the  state  legislature  were  made  subject  to 
referenda  on  matters  touching  the  relocation  of  seats  of 
government;  territorial  division;  the  incurring  of  indebtedness; 
pledging  the  faith  of  the  government  as  security  for  local  or 
private  enterprises;  the  disposition  of  properties,  franchises,  etc. 

231.   Analysis  of  Subjects  for  Popular  Votes 
The  variety  and  extent  of  subjects  to  which  the  referendum 
was  applied  are  shown  by  the  classified  list  below: 

I.  Relative  to  acts  of  legislation  and  administration  in  county 
affairs:  (i)  the  removal  of  county  seats;  (2)  the  building  of 
county  buildings,  such  as  court  house,  jail,  etc.;  (3)  the  repair 
of  county  buildings,  the  cost  of  which  shall  not  exceed  a  speci- 
fied amount;  (4)  the  relocation  of  county  buildings;  (5)  the 
organization  of  new  counties;  (6)  changing  boundaries  of 
counties;  (7)  issuing  bonds  and  borrowing  money;  (8)  funding 
the  county  debt;  (9)  adopting  a  tax  on  dogs;  (10)  increasing 
the  tax  beyond  the  specified  lunit;  (11)  purchasing  real  estate; 
(12)  providing  for  a  poor  house;  (13)  providing  for  a  children's 
home;  (14)  erecting  monument  for  soldiers;  (15)  relief,  by 
distribution  of  grain,  seeds,  etc.;    (16)  the  building  of  normal 


§  23i]  Analysis  of  Votes  301 

schools;  (17)  providing  for  free  common  schools;  (18)  provid- 
ing for  administration  of  schools;  (19)  providing  for  county 
high  schools;  (20)  the  purchase  of  toll  roads;  (21)  the  adop- 
tion of  road  law  and  the  selling  of  bonds;  (22)  provisions  for 
road  board;  (23)  provisions  for  county  board;  (24)  the  subscrip- 
tion to  railway  stock;  (25)  the  subscription  to  stock  in  coal 
mines,  artesian  wells,  natural  gas,  etc.;  (26)  the  adoption  of 
liquor  laws;  (27)  provisions  for  bounty  for  killing  wild  animals; 
(28)  fencing  for  stock;  (29)  protection  against  prairie  fires. 

II.  Relative  to  legislative  and  administrative  acts  in  cities 
and  towns:  (i)  as  to  incorporation;  (2)  the  surrender  of  charter; 
(3)  the  consolidation  of  two  or  more  cities  or  towns;  (4)  the 
amendment  of  charter;  (5)  the  reorganization  of  the  city  gov- 
ernment; (6)  the  annexation  of  territory;  (7)  the  recession  of 
territory;  (8)  the  classification  or  gradation  of  municipalities; 
(9)  the  names  of  towns;  (10)  the  creation  of  new  wards;  (11) 
determining  whether  ofiices  shall  be  elective  or  appointive; 
(12)  determining  whether  the  legislature  shall  be  a  popular 
assembly;  (13)  determining  whether  there  shall  be  a  minority 
representation;  (14)  determining  whether  the  city  shall  subscribe 
to  stock  of  railways,  business  corporations,  etc.;  (15)  free  city 
libraries;  (16)  passing  on  appropriations  other  than  those 
necessary  for  the  regular  departments  of  government;  (17) 
the  enforcement  of  the  collection  of  taxes;  (18)  the  levy  of 
taxes  beyond  certain  limits;  (19)  the  sale  of  real  estate  belong- 
ing to  the  city;  (20)  the  acquiring  of  real  estate;  (21)  the 
borrowing  of  money;  (22)  the  issuing  of  bonds;  (23)  fixing  the 
salaries  of  officers;  (24)  determining  whether  road  tax  may  be 
worked  out;  (25)  whether  city  may  aid  in  building  certain  high- 
ways; (26)  concerning  the  building  of  certain  bridges;  (27) 
the  closing  of  streets;  (28)  adoption  of  liquor  law;  (29)  the 
fixing  of  the  amount  of  license;  (30)  pensions  for  poUcemen; 
(31)  building  of  city  hall;  (32)  the  organization  of  wards  for 
school  purposes;  (33)  the  selection  of  sites  for  schools;  (34)  the 
levy  of  special  tax  for  schools;  (35)  questions  of  board  of  educa- 
tion;   (36)  the  establishment  of  high  school;    (37)  the  length 


302  Popular  Legislation  [§  231 

of  school  term;  (38)  water  supply;  (39)  as  to  parks  —  buying 
land,  laying  out,  encroachments  on,  etc.;  (40)  the  impounding 
of  stock;  (41)  the  adoption  of  the  merit  system  of  civil  service; 
(42)  the  establishment  of  fire  department;  (43)  the  increase 
of  pay  to  police;  (44)  matters  of  drainage;  (45)  municipal 
lighting;  (46)  river  improvements;  (47)  the  building  of  monu- 
ments. 

III.  As  to  the  formation  and  administration  of  levee  districts. 

IV.  As  to  legislative  and  administrative  acts  in  townships: 
(i)  sale  of  school  lands;  (2)  the  leasing  of  school  lands;  (3)  the 
division  of  school  lands;  (4)  the  levy  of  tax  for  school  purposes; 
(5)  liquor  Hcenses;  (6)  the  issue  of  bonds;  (7)  subscription  to 
stock;  (8)  libraries,  parks,  and  cemeteries;  (9)  holding  town 
meetings;  (10)  change  in  name;  (11)  adoption  of  a  herd  law; 
(12)  roads  and  bridges;  (13)  poUcemen;  (14)  sale  of  town 
property. 

V.  As  to  administration  in  road  districts. 

VI.  As  to  administration  in  irrigation  districts. 

VII.  As  to  legislation  and  administration  in  school  districts: 
(i)  organization  of  and  general  provisions  for;  (2)  raising 
money  in;  (3)  making  loans;  (4)  consohdation  of  two  or  more; 
(5)  the  selection  of  sites  for  building;  (6)  the  change  of  bounda- 
ries; (7)  the  establishment  of  high  school;  (8)  the  length  of 
term  of  school. 


CHAPTER  XXII 

JUDICIAL  DECISIONS  ON  POPULAR  PARTICIPATION   IN 
LEGISLATION 

232.  References 

Bibliography:   Same  as  for  ch.  xxiv. 

General  Works:  E.  P.  Oberholtzer,  Referendum  in  America  (1911), 
chs.  vii,  viii,  xiii;  C.  S.  Lobingier,  The  People's  Law  (1909),  ch.  xxvii;  T.  M. 
Cooley,  Constitutional  Limitations  (7th  ed.,  1903),  §§  116-117;  H.  C.  Black, 
Constitutional  Law  (2d  ed.,  1897),  ch.  xiii,  §  105. 

233.  Early  Cases  Affirming  Popular  Votes 

As  shown  in  the  previous  chapter,  popular  voting  on  legisla- 
tion, so  far  as  not  specifically  provided  for  in  the  written  con- 
stitution, has  grown  up  and  become  a  part  of  what  in  England 
would  be  called  the  unwritten  constitution.  Alongside  of  the 
principle  of  representative  government  has  gone  the  referen- 
dum —  in  part  provided  for  in  written  charters  and  in  part 
availed  of  or  authorized  by  the  legislature  in  matters  not 
covered  by  the  written  constitution.  Such  action,  however, 
has  always  been  subject  to  the  general  authority  of  courts,  who 
are  called  on  to  consider  whether  statutes  or  other  laws  or 
ordinances  have  been  legally  enacted. 

Probably  the  earUest  case  in  which  the  constitutionaUty  of 
the  referendum  was  questioned  is  Wales  v.  Belcher,  decided  in 
1826  by  the  Supreme  Court  of  Massachusetts.  A  statute  on 
the  jurisdiction  of  the  courts  of  the  city  of  Boston  provided 
that  a  favorable  vote  of  the  electorate  of  that  city  must  be  had 
before  it  could  go  into  effect.  This  law  was  attacked  on  the 
grounds  that  under  the  form  of  representative  government 
guaranteed  by  the  constitution  of  the  state  of  Massachusetts 
the  legislative  power  was  vested  by  the  people  in  a  legislature; 
having  thus  estabUshed  a  constitutional  agent,  with  power  to 


304  Judicial  Decisions  [§  233 

exercise  the  legislative  function,  laws  could  be  made  only  in 
the  manner  provided  in  the  constitution  and  in  no  other  way; 
that  the  referring  of  an  act  of  the  legislature  to  the  electorate 
for  final  passage  was  a  delegation  of  the  legislative  power,  which 
was  not  in  accord  with  the  fundamental  principles  of  our  gov- 
ernment, and  was  an  attempted  infraction  of  the  constitution 
itself. 

The  Supreme  Court,  in  passing  judgment  on  this  point,  said: 
"This  objection,  for  aught  we  see,  stands  unsupported  by  any 
authority  or  sound  judgment.  May  not  the  legislature  make 
the  existence  of  any  act  depend  upon  the  happening  of  any  future 
event?  Constitutions  themselves  are  so  made;  the  representa- 
tive body  in  convention  or  other  forms  of  assembly  fabricates 
the  provisions,  but  they  are  nugatory  unless  at  some  future 
time  they  are  accepted  by  the  people.  Statutes  incorporatmg 
companies  are  made  to  derive  their  force  from  the  previous  or 
subsequent  assent  of  the  bodies  incorporated.  A  tribunal 
peculiar  to  some  section  of  the  commonwealth  may  be  thought 
by  the  legislature  to  be  required  for  the  pubhc  good  and  yet 
may  not  be  acceptable  to  the  community  over  which  it  is  estab- 
Hshed.  We  see  no  impropriety,  certainly  no  unconstitutional- 
ity, in  giving  the  people  an  opportunity  to  accept  or  reject  its 
provisions."  ^ 

In  1837  the  same  question  was  raised  by  a  test  case  in 
Virginia^  relative  to  the  constitutionality  of  a  law  authorizing 
the  city  of  Richmond  to  subscribe  to  the  capital  stock  of  a 
canal  company  providing  the  electorate  of  Richmond  assented. 
Again,  the  supreme  court  of  the  state,  speaking  through  Justice 
Tucker,  affirmed  the  principle  of  the  referendum  on  the  ground 
that,  "the  principles  of  good  sense,  not  less  than  those  of  our 
institutions,  inculcate  the  general  propriety  of  leaving  to  indi- 
viduals and  to  communities  the  right  to  judge  for  themselves 
what  their  interest  demands,  instead  of  fettering  and  control- 
Ung  them  under  the  false  notion  that  we,  the  governors,  know 
what   is  good   for  them  better  than  they  themselves."     The 

'  Wales  V.  Belcher,  3  Pick.  508.  '  Goddin  v.  Crump,  8  Leigh  120. 


§  234]  Negative  Cases  305 

same  principle  was  presented  to  the  Marylana  Court  of  Appeals 
in  1844  in  the  case  of  Burgess  v.  Pue,^  the  law  under  considera- 
tion being  one  providing  for  the  estabUshment  of  primary 
schools  within  such  counties  as  by  vote  of  the  electorate  accepted 
its  provisions.  The  court  decided  that,  in  its  opinion,  "there 
was  no  vaUdity  in  the  constitutional  question  which  was  raised 
by  the  appellee's  counsel  in  the  course  of  his  argument  relative 
to  the  competency  of  the  legislature  to  delegate  the  power  of 
taxation  to  the  taxable  inhabitants  for  the  purpose  of  raising 
a  fund  for  the  diffusion  of  knowledge  and  the  support  of  pri- 
mary schools.  The  object  was  a  laudable  one,  and  there  is 
nothing  in  the  Constitution  prohibitory  of  the  delegation  of  the 
power  of  taxation,  in  the  mode  adopted,  to  effect  the  attainment 
of  it;  we  may  say  that  grants  of  similar  powers  to  other  bodies, 
for  poUtical  purposes,  have  been  coeval  with  the  Constitution 
itself,  and  that  no  serious  doubts  have  ever  been  entertained 
of  their  vaUdity." 

234.  First  Cases  Denying  the  Right  of  Referendum 

The  principle  of  the  exercise  of  the  referendum  under  the 
sanction  of  immemorial  custom,  or  what  in  England  would  be 
called  the  "unwritten  constitution,"  stood  without  impairment 
for  about  a  half  a  century  after  the  Revolution,  and,  for  one 
reason  or  another,  was  defended  by  the  highest  courts  of  those 
states  where  the  question  had  been  raised.  Then,  without 
warning,  the  famous  decision  of  the  highest  Delaware  court  ^  in 
1847  shook  the  legal  foundations  on  which  action  by  courts  and 
legislatures  theretofore  had  rested.  The  Delaware  legislature, 
on  February  19,  1847,  passed  a  statute  "authorizing  the  people 
to  decide  by  ballot  whether  hcenses  to  retail  intoxicating  liquors 
should  be  permitted  among  them."  Following  the  very  subtle 
reasoning  of  counsel  the  court  decided  (Rice  v.  Foster)  as  follows: 
"The  people  of  the  State  of  Delaware  have  vested  the  legisla- 
tive power  in  a  General  Assembly,  consisting  of  a  Senate  and 
House  of  Representatives;  the  supreme  executive  power  of  the 
^  2  Gill  II.  2  ^jce  V  Foster,  4  Harr.  479. 

21 


3o6  Judicial  Decisions  [§  234 

State  in  a  Governor,  and  the  judicial  power  in  the  several 
Courts.  .  .  .  The   sovereign   power,   therefore,   of   this   State 
resides  in  the  legislative,  executive,  and  judicial  departments. 
Having  thus  transferred  the  sovereign  power,  the  people  cannot 
resume  or  exercise  any  portion  of  it.     To  do  so  would  be  an 
infraction  of  the  constitution  and  a  dissolution  of  the  govern- 
ment. .  .  .  Although  the  people  have  the  power,  in  conformity 
with  its  provisions,  to  alter  the  constitution,  under  no  circum- 
stances can  they,  so  long  as  the  Constitution  of  the  United 
States  remains  the  paramount  law  of  the  land,  estabUsh  a 
democracy  or  any  other  than  a  repubhcan  [that  is,  a  representa- 
tive] form  of  government.     It  is  equally  clear  that  neither  the 
legislative,  executive,  nor  judicial  departments,  separately  or 
all  combined,  can  devolve  on  the  people  [that  is,  the  electorate] 
the  exercise  of  any  part  of  the  sovereign  power  with  which  each 
is  vested.    The  assumption  of  a  power  to  do  so  would  be  usurpa- 
tion.   The  department  arrogating  it  would  elevate  itself  above 
the  constitution,  overturn  the  foundation  upon  which  its  own 
authority  rests,  demolish  the  whole  frame  and  texture  of  our 
representative  form  of  government,  and  prostrate  everything  to 
the  worst  species  of  tyranny  and  despotism,  the  ever-varying 
will  of  an  irresponsible  multitude.  ...  If  the  legislature  can 
refer  one  subject  it  can  refer  another  to  popular  legislation. 
There  is  scarcely  a  case  where  much  diversity  of  sentiment 
exists,  and  the  people  are  excited  and  agitated  by  the  acts  and 
influence  of  demagogues,  that  will  not  be  referred  to  a  popular 
vote.    The  frequent  and  unnecessary  recurrence  of  popular 
elections,  always  demoralizing  in  their  effects,  are  among  the 
worst  evils   that   can  befall   a   republican  government;   and 
the  legislation  depending  upon  them  must  be  as  variable  as  the 
passions  of  the  multitude.     Each  county  will  have  a  code  of 
laws  different  from  the  other;   murder  may  be  punished  with 
death  in  one,  by  imprisonment  in  another,  and  by  fine  in  a 
third.     Slavery  may  exist  in  one  and  be  abolished  in  another. 
The  law  of  to-day  will  be  repealed  or  altered  to-morrow,  and 
everything  be  involved  in  chaos  and  confusion.    The  General 


§  235]  Reasons  Advanced  307 

Assembly  will  become  a  body  merely  to  digest  and  prepare 
legislative  propositions,  and  their  journals  a  register  of  bills 
to  be  submitted  to  the  people  [the  electorate]  for  their 
enactment. 

"Finally,  the  people  [as  sovereign]  themselves  will  be  over- 
whelmed by  the  very  evils  and  dangers  against  which  the 
founders  of  our  government  so  anxiously  intended  to  protect 
them;  all  the  barriers  so  carefully  erected  by  the  constitution 
around  civil  liberty,  to  guard  against  legislative  encroachment 
and  against  assaults  of  vindictive,  arbitrary,  and  excited  majori- 
ties will  be  thrown  down  and  a  pure  democracy,  'the  worst  of 
all  political  evils,'  will  hold  its  sway  under  the  hollow  and  life- 
less form  of  a  republican  government."  In  the  same  year  the 
logic  employed  by  the  Delaware  court  was  followed  by  Pennsyl- 
vania.i 

236.  Reasons  Advanced  in  Support  of  Popular  Votes 

It  is  to  be  observed  that  all  the  court  cases  so  far  considered 
have  to  do  with  votes  in  local  subdivisions  of  the  state  and  not 
with  the  referendal  principle  as  applied  to  measures  to  be  voted 
on  by  the  people  of  the  state  at  large.  The  court  in  Wales  v. 
Belcher  ^  found  three  reasons  in  support  of  the  constitutionality 
of  the  referendum:  first,  because  "constitutions  themselves  are 
so  made";  second,  because  "statutes  incorporating  companies 
are  made  to  derive  their  force  from  the  previous  or  subsequent 
assent  of  the  bodies  incorporated";  third,  because  "a  tribunal 
peculiar  to  some  section  of  the  commonwealth  may  be  thought 
by  the  legislature  to  be  required  by  the  public  good,  and  yet  may 
not  be  acceptable  to  the  community  over  which  it  is  established  " ; 
in  other  words  the  court  relied  on  analogy  drawn  from  practice 
in  the  adoption  of  constitutions,  on  precedent  relating  to 
incorporation,  and  on  reasons  of  expediency. 

In  Goddin  v.  Crump  ^  the  court  appealed  to  the  third  reason 
set  forth  above,  expediency,  and  enlarging  on  it,  observed  that, 

*  Parker  v.  Commomvealth,  6  Barr  507. 

«  3  Pick.  (Mass.)  508.  »  8  Leigh,  120. 


308  Judicial  Decisions  [§  236 

"principles  of  good  sense,  not  less  than  those  of  our  institu- 
tions, inculcate  the  general  propriety  of  leaving  to  individuals 
and  to  communities  the  right  to  judge  for  themselves  what 
their  interest  demands,  instead  of  fettering  and  controlling 
them  under  the  false  notion  that  we,  the  governors,  know  what 
is  good  for  them  better  than  they  themselves." 

In  Burgess  v.  Pue  a  fourth  reason  was  added  in  support  of 
the  constitutionaUty  of  such  measures,  the  court  saying  that, 
"there  was  no  vahdity  in  the  constitutional  question  which 
was  raised  by  appellee's  counsel  in  the  course  of  his  argument 
relative  to  the  competency  of  the  legislature  to  delegate  the 
power  of  taxation  to  the  taxable  inhabitants,  ...  we  may 
say  that  grants  of  similar  powers  of  other  bodies  for  poUtical 
purposes  have  been  coeval  with  the  Constitution  itself,  and 
that  no  serious  doubts  have  been  entertained  of  their  vahdity." 
Here  we  have  a  crude  suggestion  of  the  reUance  on  what  is 
before  referred  to  as  thq  "unwritten  constitution"  —  used  in 
the  English  sense  and  not  as  American  jurists  have  sometimes 
employed  the  term. 

236.   Criticism  of  the  Court  Arguments 

It  was  unfortunate  that  the  lawyers  and  jurists  of  that  time 
did  riot  have  a  better  grasp  of  the  principles  underlying  the 
referendum;  \dz.,  that  in  a  state  in  which  the  people  are 
sovereign,  and  a  government  in  which  an  electorate  has  been 
created  to  express  the  sovereign  •will  there  can  be  no  pre- 
sumption against  the  constitutional  right  of  a  legislature 
providing  for  the  expression  of  the  sovereign  will  on  questions 
of  poUcy.  On  the  other  hand  where  this  had  been  customary 
at  the  time  the  constitution  was  adopted  and  the  instrument 
is  silent  it  is  to  be  assumed  that  its  continuance  was 
intended. 

Although  the  conclusion  reached  in  the  early  cases  was 
sound,  the  reasoning  was  so  faulty  as  to  lead  to  much  con- 
fusion. The  first  reason  set  forth  above  in  Wales  v.  Belcher 
was  wholly  illogical.     It  is  false  analogy,  absurd  for  a  court 


§236]  Criticism  of  Arguments  309 

to  urge  that  since  the  constitution  required  the  sanction  of  the 
people  expressed  through  the  electorate,  therefore  ordinary  legis- 
lation receiving  the  same  sanction  would  be  vaUd.  The  court 
seems  to  have  lost  sight  of  the  fact  that  the  one  is  the  act  of  a 
sovereign  people  in  the  nature  of  executing  a  charter  or  a  deed 
of  trust,  creating  and  constituting  the  government  as  its  cor- 
porate agency  —  defining  the  authority  and  prescribing  the 
manner  in  which  governmental  functions  shall  be  exercised; 
that  the  other  is  an  attempt  to  exercise  this  authority  and  to 
perform  these  functions  according  to  the  plan  prescribed  by 
the  grantors  —  the  sovereign  people.  Stated  in  another  way, 
the  one  is  an  act  of  a  constituent  political  body  estabUshing  a 
government  and  the  other  an  act  of  the  governmental  agent. 
This  line  of  argument  then  brought  forward  was  used  long 
afterward.  In  Caldwell  v.  Barrett  ^  it  is  expressed  as  follows: 
"If  the  constitution,  the  organic  law  of  the  state,  has  been 
made  to  depend  upon  the  vote  of  the  people,  it  is  not  easy  to 
perceive  why  a  local  law,  an  act  affecting  a  particular  com- 
munity, shall  not  be  determined  by  a  vote  of  the  people  of  that 
locaUty." 

The  second  reason  urged  in  Wales  v.  Belcher  is  also  misleading. 
The  fact  that  "statutes  incorporating  companies  are  made  to 
derive  their  force  from  the  previous  or  subsequent  assent  of  the 
bodies  incorporated"  has  no  direct  bearing  on  the  question  in 
hand.  Charter  grants  are  in  the  nature  of  contracts  to  which 
the  government  as  agent  for  the  state  and  the  incorporated 
company  are  parties,  the  concurrence  of  both  being  neces- 
sary to  make  them  valid.  In  so  far  as  acts  for  the  incorpora- 
tion of  private  companies  provide  for  the  exercise  of  sovereignty, 
they  are  more  analogous  to  constitutions  than  ordinary  laws, 
and  the  consent  of  the  corporation  is  necessary  to  put  the 
charters  or  constitutions  in  operation  and  to  make  them 
binding.  It  is  not  until  the  charter  has  been  agreed  upon  or 
accepted,  that  there  is  any  analogy  to  be  drawn ;  and  then 
the  legislature  may  pass  laws  not  in  conflict  with  charter 

1  73  Ga.,  604. 


^lo  Judicial  Decisions  [§236 

rights  governing  the  companies,  and  the  corporators  need  not 
be  consulted  at  all  in  such  matters. 

The  third  reason  employed  in  this  case  and  the  one  urged 
in  Goddin  v.  Crump  is  as  weak  as  the  other  two.  The  danger 
of  asserting  "the  general  propriety  of  leaving  to  individuals 
and  to  companies  the  right  to  judge  for  themselves  what  their 
interests  demand  instead  of  fettering  and  controlUng  them 
under  the  false  notion  that  we,  the  governors,  know  what  is 
good  for  them  better  than  they  themselves"  is  self-evident. 

The  only  sound  reasoning  found  in  all  three  cases  was  that 
quoted  in  Burgess  v.  Pue,  and  in  this  the  underlying  principle 
was  only  faintly  suggested  —  viz.,  the  authority  of  custom, 
or  well-known  practice  at  the  time  the  written  constitu- 
tions were  adopted.  It  is,  therefore,  matter  of  Uttle  surprise 
that,  with  such  logic  resorted  to  in  the  early  cases  courts  should 
later  scent  approaching  danger  to  our  institutions  in  the  referen- 
dum. They  saw  in  our  government  only  a  representative 
republic  in  which  immemorial  custom,  the  long  estabhshed 
practice  of  citizen  and  electoral  co-operation,  played  no  part. 
The  people  of  the  state  had  vested  the  legislative  power  "in  a 
general  assembly  consisting  of  a  senate  and  a  house  of  repre- 
sentatives; the  supreme  executive  power  of  the  State  in  a 
governor,  and  the  judicial  power  in  the  several  courts."  The 
sovereign  power,  therefore,  it  was  argued,  "resides  with  the 
legislative,  executive,  and  judicial  departments.  Having  thus 
transferred  the  sovereign  power,  the  people  cannot  resume  or 
exercise  any  portion  of  it.  To  do  so  would  be  an  infraction  of 
the  constitution  and  a  dissolution  of  the  government."  And 
they  argued  from  these  premises  that,  "although  the  people 
have  the  power,  in  conformity  with  its  provisions,  to  alter  the 
constitution,  under  no  circumstances  can  they,  so  long  as  the 
constitution  of  the  United  States  remains  the  paramount  law 
of  the  land,  estabUsh  a  democracy  or  any  other  than  a  republi- 
can form  of  government."  This'  far-fetched  premise  for  the 
conclusion  reached,  an  obiter  dictum  in  the  early  case  cited,  is 
still  employed  in  argument  against  the  referendum,  being  one 


§237]  Republican  Governmept  311 

of  the  legal  assumptions  before  the  Supreme  Court  of  the  United 
States  in  Pacific  States  Telephone  and  Telegraph  Co.  v.  Oregon  ^ 
decided  in  191 2,  in  which  the  conclusion  was  reached  that  the 
supreme  court  has  no  jurisdiction  of  the  question  whether  in 
a  state  the  referendum  is  constitutional.  The  primary  weak- 
ness is  in  the  broad  construction  given  to  the  transfer  of 
"sovereign  power"  —  the  failure  to  recognize  the  oflScer  as  an 
agent  and  not  as  a  sovereign  —  an  agent  whose  powers  are 
limited  by  his  instructions. 

237.  Meaning  of  Guaranty  of  a  Republican  Government 

But  let  us  carry  the  analysis  a  little  farther.  At  what  point 
does  the  logic  of  the  court  in  Foster  v.  Rice  break  down?  The 
whole  fault  there  Hes  in  the  interpretation  given  to  the  clause 
of  the  federal  constitution  guaranteeing  to  each  state  "a  repub- 
lican form  of  government."  This  clause  has  been  construed  by 
the  United  States  Supreme  Court  in  Texas  v.  White,  Luther  v. 
Borden,  and  Taylor  v.  Beckham.  In  Texas  v.  While,  the  chief 
justice  said:  "A  state,  in  the  ordinary  sense  of  the  Constitution, 
is  a  political  community  of  free  citizens,  occupying  a  territory 
of  defined  boundaries,  and  organized  under  a  government  sanc- 
tioned and  limited  by  a  written  constitution  and  established 
by  the  consent  of  the  governed.  .  .  .  There  are  instances  in 
which  the  principal  sense  of  the  word  seems  to  be  that  primary 
one  to  which  we  have  adverted,  of  a  people  or  political  com- 
munity, as  distinguished  from  a  government.  In  this  latter 
sense  the  word  seems  to  be  used  in  a  clause  which  requires  that 
the  United  States  shall  guarantee  to  every  State  in  the  Union 
a  republican  form  of  government." 

This  construction  throws  Httle  light  on  the  practical  appli- 
cation of  the  inhibition  to  referendal  legislation.  Yet  it  must 
be  presumed  that  the  framers  of  the  constitution  of  the  United 
States  had  the  concept  defined  in  their  own  minds,  and  that 
they  understood  the  phrase,  a  "republican  form  of  govern- 
ment," as  used  therein,  to  mean  a  representative  republic,  in 
^  222  U.  S.  226. 


312  Judicial  Decisions  [§237 

its  federal  and  in  its  state  organization,  of  the  exact  character 
prescribed.  It  seems  also  clear  that  the  principle  of  the 
division  of  powers  was  intended  as  a  precaution  against 
usurpation  of  official  powers  and  not  as  a  precaution  against 
the  expression  of  the  sovereign  will  of  the  people  to  be  taken 
through  a  referendum;  that  they  were  familiar  with  the  powers 
exercised  by  the  people  through  the  electorate  in  local  subdi- 
visions of  the  state  and  that  an  inhibition  against  these  was 
not  intended.  Further,  it  must  be  presumed  that  the  attempt 
to  extend  the  inhibitions  of  the  constitutions  and  the  logic  of 
representative  government  into  the  township  and  other  local 
organizations  was  born  of  a  desire  which  was  not  present  when 
federal  and  state  constitutions  were  adopted;  viz.,  a  desire  to 
defeat  a  local  option  hquor  law.  The  error  which  the  court 
made  in  Rice  v.  Foster  and  Burgess  v.  Pue  was  in  ignoring  the 
customary  law,  as  it  existed  before  the  adoption  of  written 
constitutions,  so  far  as  this  unwritten  constitution  applied 
to  local  government,  and  in  seeking  by  implication  to  carry 
the  logic  of  official  representation  in  government  down  to  the 
smallest  political  subdivision  —  and  this  to  the  exclusion  of  the 
use  of  the  electorate  for  expression  of  opinion  on  local  laws. 
In  this  the  courts  have  done  violence  to  the  intent  of  the 
framers  of  written  constitutions. 

It  has  been  the  fault  of  many  courts  to  confine  their  vision 
of  our  government  to  the  exact  provisions  of  the  written  con- 
stitution and  to  exclude  all  else;  and  those  advocates  who  have 
found  it  to  their  interest  to  oppose  the  referendum  in  local 
government  in  the  United  States  have  availed  themselves  of 
this  judicial  tendency  with  much  satisfaction  to  themselves, 
but  wdth  very  great  dissatisfaction  to  the  people — i.e.,  to  those 
who  adopted  the  constitution  which  the  courts  construed.  One 
can  scarcely  conceive  of  a  more  extreme  position  than  is  taken 
by  the  court  in.  Ex  rel.  Wall,  ^  in  which  a  local  option 
law  is  declared  unconstitutional  on  the  ground  that  "our  gov- 
ernment is  a  representative  republic,  not  a  simple  democracy. 
1  48  Cal.  279. 


§237]  Republican  Government  313 

Whenever  it  shall  be  transformed  into  the  latter,  as  we  are 
taught  by  all  the  examples  of  history,  the  tyranny  of  a  change- 
able majority  will  soon  drive  all  honest  men  to  seek  refuge  be- 
neath the  despotism  of  a  single  ruler."  Whatever  there  may  be 
in  the  distinction  in  mind,  and  each  person  is  left  to  guess  what 
the  court  meant  by  "simple  democracy,"  it  had  nothing  to  do 
with  the  merits  of  the  case. 

The  inference  here  indulged  seems  to  be  that  because  accord- 
ing to  ancient  custom  and  the  unwritten  constitution,  the  legis- 
lature has  made  the  acceptance  of  a  law  by  a  certain  local 
political  imit  to  depend  upon  an  electoral  vote  of  the  local 
political  unit,  therefore  the  safeguards  of  the  written  constitu- 
tion are  imperilled.  This  is  on  a  par  with  the  vagaries  employed 
by  the  court  in  Rice  v.  Foster  and  Parker  v.  Commonwealth.  The 
court  overlooked  the  fact  that  customary  government  or  the 
unwritten  constitution  is  subordinate  to,  and  to  that  extent 
modified  by,  both  the  written  constitutions  and  the  acts  of  the 
legislature;  and  that  for  that  reason  any  act  of  the  legislature 
which  authorizes  taking  a  vote  of  the  electorate  on  a  measure 
before  it  can  become  law  could  have  no  binding  force  on  future 
acts  of  the  legislature,  therefore  could  not  impair  these 
safeguards. 

The  only  interpretation  which  can  be  given  to  the  guarantee 
in  the  constitution  of  the  United  States  that  each  state  shall 
have  a  republican  form  of  government  is  one  that  is  consistent 
with  the  institutional  forms  and  practices  which  at  the  time 
existed  and  which  by  the  framers  were  considered  republican. 
Those  who  applied  the  written  constitution  were  accustomed 
to  referendum  in  local  matters.  The  claim  that  what  for 
half  a  century  was  considered  republican  was  not  republican 
when  the  expressed  will  of  the  people  ran  counter  to 
the  idea  of  some  one  who  happened  to  occupy  a  judicial 
position,  would  seem  to  be  wholly  unwarranted.  The  one  con- 
clusion which  comports  with  the  historic  facts  that  must  be 
considered  in  deciding  what  was  in  the  minds  of  the  makers  of 
the  constitution  is  that  the  referendum  is  not  unrepublican, 


314  Judicial  Decisions  [§238 

except  where  the  people  in  their  charters  of  government  have 
placed  a  Umitation  on  the  legislature  such  as  does  not  admit 
of  its  referring  matters  of  public  policy  to  the  electorate  for 
decision.  Stated  positively,  the  conclusion  would  be  that  in 
a  republic  the  electorate  is  one  of  the  constitutional  agencies 
of  government;  that  this  agency  may  be  utilized  whenever  it 
is  thought  to  be  expedient  unless  the  written  constitution 
prohibits  such  action. 

238.    Evolution  of  Decisions  on  the  Constitutionality  of  the 
Referendum 

The  confusion  in  judicial  thought  and  the  subtleness  of  the 
position  taken  in  the  two  cases  of  1847  above  cited  were  suffi- 
cient to  throw  the  courts  and  pubHc  into  a  turmoil  for  several 
decades  following.  The  final  result,  however,  was  an  evolu- 
tion of  thought  which  has  led  to  conclusions  in  harmony  with 
our  institutions.  In  1848,  in  the  People  ex  rel.  v.  Reynolds,^ 
the  Supreme  Court  of  IlHnois  passed  on  the  vaUdity  of  a  law 
which  provided  for  the  submission  of  the  question  of  the  division 
of  a  county  to  vote  of  the  electorate  of  that  county.  In  this 
emphasis  was  given  to  the  principle  that  a  law  may  depend  upon 
a  future  event  or  contingency  for  its  taking  effect;  hence  the 
court  overruled  the  objection  made  that  such  a  submission  was 
a  delegation  of  legislative  power.  "Had  this  authority  been 
given  to  the  court,  instead  of  the  voters,  we  are  compelled  to 
believe  that  no  complaint  of  its  constitutionality  would  have 
been  entertained,  and  yet  there  would  have  been  as  much  dele- 
gation of  powers  in  one  case  as  the  other.  To  prove  this  needs 
no  argument.  If,  by  leaving  this  question  to  the  people,  the 
republican  form  of  government  is  to  be  overturned,  and  its 
principles  subverted  by  a  miniature  democracy,  may  not  the 
same  awful  calamities  be  apprehended  from  a  miniature  mon- 
archy? "  A  few  months  after  this  case  the  Supreme  Court  of 
Pennsylvania  practically  reversed  the  precedent  established  in 
the  case  before  cited.^  This  was  followed  in  1849  by  the 
^  5  Oilman  (111.)-  ^  Parker  v.  Commonwealth,  6  Barr.  507. 


i 


§238]  Evolution  of  Decisions  315 

Supreme  Court  of  Kentucky  in  Talbot  v.  Dent.  The  fiction  so 
often  employed  in  other  cases  was  set  aside  as  follows:  "It  is 
no  objection  to  the  constitutional  validity  of  such  statutes  that 
they  depend  for  their  final  effects  upon  the  discretionary  acts 
of  individuals  and  others.  The  legislative  power  is  not  exer- 
cised in  doing  the  act,  but  in  authorizing  it  and  in  prescribing 
its  effects  and  consequences.  .  .  .  We  do  not  perceive  that 
there  is  any  greater  abandonment  of  the  legislative  will  and 
discretion  necessarily  to  be  implied  in  referring  this  question 
as  to  the  execution  of  the  authority  and  final  imposition  of  the 
tax  to  a  majority  of  those  who  are  to  bear  it  than  in  referring 
it  to  the  county  court  or  to  the  trustees  or  council  of  a  town 
or  city." 

These  decisions  introduce  another  set  of  premises  for  reason- 
ing to  support  the  constitutionality  of  the  referendum  in  local- 
option  laws.  Briefly  stated  they  are:  (i)  that,  "although  the 
legislature  cannot  delegate  its  power  to  make  laws,  it  can  make 
a  law  to  delegate  the  power  to  determine  some  fact,  or  state  of 
things  upon  which  the  law  makes  or  intends  to  make  its  action 
to  depend";  (2)  that  "local  option  laws  are  not  delegations, 
in  any  sense,  of  legislative  power.  .  .  .  They  are  made  opera- 
tive or  not  in  particular  localities,  upon  certain  circumstances, 
which  are  referred  to  the  electorate  for  determination,  but 
when  set  in  operation  they  derive  their  origin  from  the  original 
legislative  life  infused  into  them  as  general  laws  of  the  land." 
Therefore,  they  conclude,  local  option  laws  are  constitutional. 

The  force  with  which  this  logic  has  appealed  to  courts  may  be 
seen  in  the  frequency  with  which  it  was  followed.  More  than 
sixty  decisions  supporting  the  referendum  follow  this  early 
reasoning.  Again,  although  the  conclusion  reached  must  be 
accepted,  clear  thinking  about  the  referendum  requires  that  we 
recognize  that  the  reasoning  also  is  faulty.  The  major  premise 
is  not  to  be  accepted  without  question.  Is  it  true  that  the 
legislature  may  not  delegate  the  power  to  make  laws?  What 
are  executive  orders  but  legislation?  What  are  the  rules  govern- 
ing courts  but  legislation?     What  are  the  rules  adopted  by 


3  1 6  Judicial  Decisions  [§  239 

state  civil  service  commissions  but  legislation  ?  What  are  ordi- 
nances of  municipalities  but  legislation?  In  order  to  justify 
the  first  premise  it  must  be  assumed  that  no  act  of  government 
except  an  act  of  the  legislature  is  law.  The  assumption  is  this: 
legislation  is  the  act  of  the  state  legislature;  therefore  no  other 
agency  can  legislate.  The  assumed  definition  of  the  term  dis- 
cussed precludes  all  reasoning.  If  legislation  is  defined  to  mean 
the  enactment  or  prescription  of  rules  of  conduct  which  are 
binding  on  those  who  are  within  the  jurisdiction  of  the  govern- 
ment, then  the  facts  do  not  support  the  conclusions  of  those 
courts  which  have  decided  that  the  legislature  cannot  authorize 
some  other  governmental  agency  to  make  laws.  The  further 
false  assumption  seems  to  be  that  the  electorate  is  not  a  govern- 
mental agency,  whereas  this  is  by  the  written  constitution  made 
a  part  of  the  governmental  machinery. 

239.  Argument  that  Legislative  Powers  may  not  be  Delegated 

Those  constitutional  writers  of  to-day  who  affirm  that  the 
legislature  may  not  delegate  these  powers  conferred  upon  it  by 
the  people  in  a  written  constitution  make  an  exception  in 
matters  of  local  government,  in  so  far  as  there  is  no  constitu- 
tional limitation.  Even  though  the  reason  for  the  exception 
may  not  be  so  expressed,  the  principle  which  justifies  it  is  that 
the  customary  law  —  the  unwritten  constitution  —  in  force  at 
the  time  our  written  constitutions  were  adopted  recognized  the 
right  of  legislatures  to  employ  the  electorate  whenever  expres- 
sion of  opinion  seemed  desirable.  This  also  sanctions  delegation 
of  legislative  power  in  matters  of  local  concern.  Judge  Cooley, 
who  so  steadfastly  maintains  the  principle  that  the  legislature 
cannot  delegate  the  exercise  of  power  conferred  upon  it  by  the 
people  in  their  written  constitutions,'  with  equal  force  makes 
this  distinction  when  he  discusses  local  government:  "It  has 
been  seen  that  the  legislature  cannot  delegate  its  power  [con- 
ferred by  the  written  constitution]  to  make  laws,  but  funda- 
mental as  this  maxim  is,  it  is  so  qualified  by  the  customs  of  our 
'  Cooley,  T.  M.,  Constilutional  Limitations,  sees.  116-117. 


§  24o]  Local  Referendum  317 

race,  and  by  other  maxims  which  regard  local  government,  that 
the  right  of  the  legislature,  in  the  entire  absence  of  authoriza- 
tion or  prohibition,  to  create  towns  and  other  inferior  municipal 
organizations,  and  to  confer  upon  them  the  powers  of  local 
government,  and  especially  of  local  taxation  and  police 
regulation  usual  with  such  corporations,  would  always  pass 
unchallenged."  ^ 

While  the  customary  law  or  unwritten  constitution  is  to  be 
considered  in  determining  the  powers  of  the  legislature  in  grant- 
ing local  charters,  it  is  not  to  be  inferred  that  an  incorporated 
subdivision  of  the  state  may  enact  laws  in  any  other  manner 
than  that  expressly  provided  or  implied  by  the  legislature. 
The  only  contention  is  that  the  legislature  itself  when  creating 
local  subdivisions  or  when  making  laws  local  in  character 
"may  exercise  such  powers  of  government  coming  within  a 
proper  designation  of  legislative  power  as  are  not  expressly  or 
impUedly  prohibited"  by  the  written  constitution,  and  unless 
the  referendum  is  prohibited  this  method  of  enactment  may  be 
sanctioned. 

240.  Argument  that  Local  Referendum  is  not  a  Delegation  of 
Powers 

So  too  the  second  premise  also  may  be  questioned  as  to  its 
soundness.  In  the  first  place  the  statement  that  "local  option 
laws  are  not  delegations,  in  any  sense,  of  legislative  power," 
would  not  be  granted.  The  principle  that  local  governing 
agencies  may  act  by  delegated  power  only  is  against  it;  it  would 
not  be  conceded  that  local  laws  derive  their  origin  from  the 
original  legislation  in  any  different  sense  than  the  legislature 
itself  derives  its  powers  from  the  people.  The  power  of  the 
legislature  to  prescribe  in  what  manner  the  local  bodies  shall 
act  leaves  it  free  to  prescribe  that  laws  may  be  voted  by  the 
electorate  unless  the  constitution  forbids.  Instead  of  leaving 
to  each  separate  city  of  the  state  the  right  to  prescribe  by 
ordinance  for  certain  matters,  the  legislature  provides  that  in 

1  Cooley,  T.  M.,  Constitutional  Limitations,  sees.  191-^2.     sth  ed. 


3i8  Judicial  Decisions  [§241 

case  any  of  these  cities  choose  to  act  in  these  matters,  they  may 
do  so  in  the  manner  prescribed  by  general  law.  We  will  take  for 
example  a  Hquor  law:  the  legislature  puts  on  the  statute  book 
a  liquor  law  to  apply  to  all  cities  that  by  electoral  assent  choose 
to  be  governed  by  it.  This  is  exactly  the  same  process  as  the 
passage  by  the  legislature  of  a  measure  to  apply  to  the  whole 
state  in  case  the  electors  of  the  state  shall  by  ballot  decide  that 
the  whole  state  shall  be  governed  by  it;  and  yet,  in  the  latter 
case,  the  courts  have  generally  declared  such  an  act  uncon- 
stitutional on  the  ground  that  it  was  a  delegation  of  the  express 
powers  of  legislation  conferred  on  the  legislature  by  the  written 
constitution,  and  it  is  only  when  the  constitution  itself  pro- 
vides for  such  a  course  of  legislation  that  the  referendum  is 
held  to  be  valid.  In  the  case  of  a  state  law  which  has  been 
referred  to  the  electorate  pursuant  to  constitutional  provision, 
it  has  not  been  said  that  the  law  derived  its  power  "from  the 
original  legislative  life  infused  into  it,"  but  that  its  life  was  due 
to  the  conjoint  action  of  both  legislature  and  the  electorate.  It 
would  not  be  more  logical  to  affirm  that  life  has  been  infused 
into  a  local  law  by  the  legislature  when  this  law  had  been  initi- 
ated by  the  legislature  and  under  the  unwritten  constitution 
was  referred  to  the  qualified  voters  for  final  action  before  it 
became  operative. 

241.  Participation  in  Legislation  a  Proper  Function  of  the 
Electorate 

With  this  melange  of  legal  theory  and  chaos  of  ideas,  it  is 
little  wonder  that  the  referendum  has  been  frequently  brought 
into  question  by  Utigants  and  that  a  few  decisions  have  been 
recorded  adverse  to  the  right  of  the  electorate  to  participate  in 
legislation.  One  is  surprised  that  the  laws  involving  this  prin- 
ciple have  been  so  predominantly  supported,  since  their  support 
rests  on  such  an  illogical  and  unsound  basis.  A  consistent 
theory  of  laws  of  this  kind  was  first  essayed  by  the  Supreme 
Court  of  Vermont.  In  Bancroft  v.  Dumas  (1849)  said  the  Court, 
"It  is  objected  to  the  validity  of  this  law,  that  its  vitality  is 


f       §241]  Participation  in  Legislation  319 


|!> 


made  to  depend  upon  the  will  of  the  people,  expressed  at  the 
ballot  box,  and  hence  it  is  urged  that  it  is  not  a  law  enacted  by 
the  legislature,  .  .  .  the  granting  of  licenses  is  made  to  depend 
upon  the  expressed  will  of  the  people.  Can  this  feature  of  the 
statute  invalidate  the  law?  Is  a  law  to  be  adjudged  invalid 
because  it  is  conformable  to  the  pubHc  will?  It  is  in  accordance 
with  the  theory  of  our  government  that  all  our  laws  should  be 
in  conformity  to  the  wishes  of  the  people.  Surely,  then,  it 
can  be  no  objection  to  a  law  that  it  is  approved  by  the  people 
[through  the  agency  of  the  electorate].  We  believe  that  it 
has  never  been  doubted  that  it  is  competent  for  the  legislature 
to  constitute  some  tribunal,  or  body  of  men  to  designate  proper 
persons  for  innkepeers  and  retailers  of  ardent  spirits.  Such 
was  the  character  of  all  our  early  laws  relating  to  Hcensing  of 
innkeepers  by  authorizing  the  selectmen  and  civil  authority  to 
approbate  suitable  persons,  and  restricting  the  county  courts 
to  the  Hcensing  of  such  as  should  be  approbated;  and  we  are 
not  aware  that  the  constitutionality  of  those  laws  was  ever 
questioned.  And  at  one  period,  during  the  continuance  of 
the  Hcense  law  of  1838,  the  power  of  determining  whether 
licenses  should  be  granted  was  vested  in  the  selectmen  and  civil 
authority  of  the  several  to^vns.  If  the  legislature  could  legally 
and  constitutionally  submit  the  question  whether  licenses  should 
be  granted  to  the  determination  of  a  portion  of  the  people, 
could  they  not  with  equal,  if  not  with  greater,  propriety  submit 
it  to  the  decision  of  the  whole  people?  " 

If  we  translate  the  phrase  "a  portion  of  the  people"  to  mean 
local  legislative  and  judicial  agents,  and  "the  whole  people" 
to  mean  the  electorate,  we  ha\-e  a  statement  that  accords  with 
the  facts  and  may  be  reconciled  with  our  views  of  the  constitu- 
tion in  the  light  of  customary  law.  In  all  legislation  referred 
to  the  electorate  the  fundamental  power  of  the  legislature  is 
to  prepare  drafts  of  laws  of  local  importance  and  to  decide 
whether  they  will  be  submitted  to  the  vote  of  the  electorate, 
in  accordance  with  the  ancient  custom  and  accepted  maxims 
of  government,  in  force  at  the  time  written  constitutions  were 


320  Judicial  Decisions  [§  242 

adopted.  As  shown  before/  the  Supreme  Court  of  Pennsyl- 
vania in  1848,  in  Parker  v.  Commonwealth,  had  suggested  the 
same  principle.  They  did  not  seek  to  put  legislation  of  this 
kind  on  a  par  with  the  written  constitution,  nor  rely  on  the 
legal  quibble  that  the  reforendal  act  and  the  popular  consent 
through  electoral  agents  were  not  legislative  acts,  nor  deny  that 
it  was  a  delegation  of  power;  but  many  of  the  cases,  following 
the  theory  employed  in  Bancroft  v.  Dumas,  declared  it  to  be  a 
delegation  of  legislative  power  and  asserted  the  doctrine  that 
"the  legislature  may  authorize  local  bodies  to  legislate  in  local 
matters." 

242.  Application  of  the  Referendum  to  State-wide  Acts 

Alongside  the  local  acts  has  gone  a  series  of  state-wide  acts 
referred  by  the  legislature  to  a  vote  of  the  electors  of  the  state- 
One  of  the  first  and  most  noted  cases  of  this  class  is  Barto  v. 
Eimrod,^  by  the  New  York  Court  of  Appeals  (1853).  In  the 
year  1849  the  legislature  of  that  state  passed  an  act  known  as 
"The  Free  School  Law,"  to  become  operative  from  and  after 
January  i,  1850,  only  if  a  majority  of  all  the  votes  cast  at  an 
election  to  be  held  throughout  the  state  should  be  in  favor  of 
it.  Out  of  several  legal  cases  m  different  parts  of  the  state, 
Barto  V.  Himrod  became  the  test:  "It  is  not  denied,"  said 
Chief  Justice  Ruggles,  "that  a  vaHd  statute  may  be  passed  to 
take  effect  upon  the  happening  of  some  future  event,  certain  or 
uncertain.  But  such  a  statute,  when  it  comes  from  the  hand  of 
the  legislature,  must  be  law  in  praesenti  to  take  effect  in  future. 
.  .  .  The  event  or  change  of  circumstances  on  which  a  law  may 
be  made  to  take  effect  must  be  such  as  in  the  judgment  of  the 
legislature  affects  the  question  of  the  expediency  of  the  law; 
an  event  on  which  the  expediency  of  the  law  in  the  judgment 
of  the  lawmakers  depends.  On  this  question  of  expediency, 
the  legislature  must  exercise  its  own  judgment  definitely  and 
finally.  .  .  .  But  in  the  present  case  no  such  event  or  change 
of  circumstances  affecting  the  expediency  of  the  law. was  ex- 
1  Supra,  pp.  313,  314.  »  4  Seld.  (N.  Y.)  483. 


§242]  Application  of  Referendum  321 

pected  to  happen.  The  wisdom  or  expediency  of  the  free  act, 
abstractly  considered,  did  not  depend  on  the  vote  of  the  people 
[the  electorate].  If  it  was  unwise  or  inexpedient  before  the 
vote  was  taken,  it  was  equally  so  afterwards.  The  event  on 
which  the  act  was  made  to  take  effect  was  nothing  else  than  the 
vote  of  the  people  [the  electorate]  on  the  identical  question  which 
the  constitution  makes  it  the  duty  of  the  legislature  itself  to 
decide.  .  .  .  The  government  of  this  state  is  democratic,  but 
it  is  a  representative  democracy,  and  in  passing  general  laws 
the  people  act  only  through  their  representatives  in  the  legis- 
lature." 1 

But  even  here  there  is  doubt  whether  the  position  is  sound,  for 
the  people  have  specifically  provided,  in  their  written  constitu- 
tions, the  manner  m  which  general  state  laws  shall  be  passed, 
and,  according  to  our  theory  of  government,  legislation  of  this 
kind  can  take  place  in  no  other  way.     But  this  does  not  mean 
that  it  would  be  revolutionary  for  the  legislature  to  attempt 
to  pass  general  measures  which  would  require  a  vote  of  the 
electorate.      Nor  would  it  be  revolutionary  for  the  judiciary 
and  the  executive  to  enforce  any  legislative  action  of  this  kind. 
Considering  the  spirit  and  intention  of  the  division  of  powers 
it  would  do  no  violence  to  this  spirit  to  extend  the  doctrine 
of  delegation  thus  far  or  to  assume  that  since  there  was  no 
inhibition  of  this  kind  mtended  therefore  the  state  legislature 
may  so  act.    This,  however,  is  contrary  to  usual  doctrine.    It  has 
been  assumed  that  any  attempt  to  permit  the  people  to  partici- 
pate would  be  unlawful  till  they  had  made  pro\dsion  for  such 
acts   by  a  constitutional  amendment.     The  cases  of  this  kind, 
however,  have  been  so  few  as  to  warrant  little  discussion  except 
for  the  purpose  of  discovering,  in  cases  where  no  constitutional 
provision  has  been  made  for  it,  the  theory  of  the  referendum 
under  our  constitutional  plan. 

»  See  also  Mayor  and  Council  of  City  of  Brunswick  v.  Finney,  54  Ga.  317 
(187s);  State  V.  Hayes,  61  N.  Y.  264  (1881);  Bank  of  Chenango  v.  Brown,  26 
N.  Y.  467  (1863);  Gould  V.  Town  of  Sterling,  23  N.  Y.  456  (1861);  State  ex 
rel.  V.  Wilcox,  45  Mo.  248  (1870). 


CHAPTER  XXin 

CONSTITUTIONAL  PROVISIONS  FOR  THE  REFERENDUM  ON 
SPECIFIC  GENERAL  STATUTES 

243.  References 

Bibliography:  Same  as  for  ch.  xxiv. 

General  Works:  E.  P.  Oberholtzer,  The  Referendum  in  America  (1911), 
ch.  viii;  J.  Bryce,  American  Commonwealth  (rev.  ed.,  1910),  ch.  xxxix. 

244.  Growth  of  Constitutional  Referenda 

Nothing  more  forcibly  illustrates  the  desire  of  our  society 
for  a  settled  and  well-established  order  than  the  growth  of 
specific  constitutional  provisions  for  defining  the  powers  of 
the  electorate.  The  need  for  such  provisions  may  be  foimd  in 
judicial  decisions  which  denied  to  the  electorate,  acting  in  the 
capacity  of  an  agency  of  the  government,  the  right  to  exercise 
a  useful  and  proper  function.  These  provisions  were  also  in  a 
measure  the  result  of  a  protest  against  the  predatory  activities 
of  official  agents  to  whom  were  intrusted  the  exercise  of  sover- 
eign power.  The  right  of  the  legislature  to  prepare  laws  and 
submit  them  to  the  electorate  for  final  adoption  had  been 
questioned  and  in  some  instances  denied  by  the  courts:  the 
interests  of  society  demanded  that  laws  sought  for  by  the 
people  should  be  enacted;  they  demanded  protection  both  from 
what  were  considered  special,  personal,  and  partisan  acts  of 
their  legislative  agents  and  from  the  blight  of  uncertainty  as 
to  what  is  law  and  what  is  not.  It  seemed  advantageous  to 
the  pubUc  welfare  that  the  electorate  be  utilized  to  decide 
certain  questions  of  poUcy  for  which  legislators  did  not  wish  to 
assume  responsibility  or  with  respect  to  which  a  specific  demand 
was  made.  The  courts  had  denied  this  right  or  raised  doubts  as 
to  the  constitutionaHty  of  such  procedure.    For  this  reason  the 


i 


§  244]  Constitutional  Referenda  323 

people  sought  the  opportunity  to  put  a  direct  sanction  of  the 
use  of  the  electorate  into  their  written  constitutions. 

This  may  seem  an  unwarranted  inference;  yet  the  fact  is 
that  no  provision  was  made  in  the  written  constitutions  for 
the  use  of  the  referendum  in  local-option  laws  till  1834,  nearly 
ten  years  after  question  as  to  its  vaHdity  had  been  raised  in 
Massachusetts.^  The  next  provision  of  this  kind  became 
effective  in  1848,  in  Ilhnois,  immediately  after  the  question 
was  raised  in  that  state  as  to  the  constitutionaUty  of  a  local- 
option  law,  and  covered  the  precise  subject  of  Htigation.  In  the 
same  year  like  provision  was  made  in  Wisconsin,  a  neighboring 
state.  These  are  the  only  constitutional  provisions  for  the 
referendum  in  local  matters  made  till  1850,  prior  to  which  time 
the  validity  of  such  laws  had  been  questioned  in  nine  different 
states.  To  this  proof  that  the  denial  of  this  right  had  a  causal 
relation  to  amendments  which  followed  may  be  added  the 
further  evidence  that  the  provisions  for  referendum  in  the 
written  constitutions  increased  very  much  in  the  same  propor- 
tion as  did  controversies  arising  out  of  the  use  of  the  referendum 
in  matters  of  local  legislation. 

Two  classes  of  provisions  for  referendum  appear  in  the 
written  constitutions:  (i)  those  providing  for  the  referendum 
on  general  acts  of  government  affecting  the  state  at  large;  (2) 
those  providing  for  referendum  on  acts  of  local  government  — 
affecting  poHtical  subdiv-isions  of  the  state. 

The  first  class  of  pro\asions  was  not,  in  all  probabihty, 
seriously  affected  by  the  decisions  of  the  courts;  for,  as  stated 
before,  it  was  quite  generally  conceded  that  the  adoption  of 
written  constitutions,  providing  a  specific  manner  in  which 
general  laws  should  be  passed  and  specifying  the  agents  for 
Iheir  enactment,  abrogated  or  enlarged  the  unwritten  constitu- 
tional powers  of  the  legislature  to  this  extent,  and  required  that 
general  laws  be  passed  by  the  legislative  agents  in  the  exact 
manner  prescribed.  Therefore  the  growth  of  this  class  of 
provisions  may  be  attributed  to  a  new  conception  of  pohtical 
*  See  supra,  p.  303. 


324   Referendum  on  General  Statutes  [§§245,246 

and  social  need  for  sanctioning  the  use  of  the  electorate  in 
deciding  questions  of  legislative  poUcy.  The  following  are 
some  of  the  subjects  concerning  which  the  referendum  is 
permissory  or  mandatory. 

245.  Territorial  Boundaries 

The  first  written  constitutional  provision  for  referendum,  of 
a  general  character,  appears  in  the  Georgia  constitution  of  1798 
(art.  I,  sec.  23),  in  a  clause  on  state  boundaries,  as  follows: 
"And  this  convention  doth  further  declare  and  assert  that  all 
the  territory  within  the  present  temporary  Une,  and  within  the 
limits  aforesaid,  is  now,  of  right,  the  property  of  the  free  citizens 
of  the  State  and  held  by  them  in  sovereignty,  inalienable  but 
by  their  consent."  Another  provision  on  the  same  subject 
appears  much  later  in  the  second  constitution  of  West  Virginia 
in  1872  (art.  VI,  sec.  n),  which  recites  that  "additional  terri- 
tory may  be  admitted  into  and  may  become  a  part  of  this  State, 
with  the  consent  of  the  legislature  and  a  majority  of  the  quali- 
fied voters  of  the  State  voting  on  the  question." 

246.   Suffrage 

In  New  York,  at  the  time  of  the  adoption  of  the  constitution 
of  1846,  the  question  of  extending  the  right  of  suffrage  to  negroes 
was  referred  to  the  electorate,^  and  like  provision  was  made 
in  the  Michigan  constitution  of  1850.  Referendal  provisions 
relative  to  suffrage  also  appear  in  the  constitutions  of  Wisconsin 
(1848),  Kansas  (1858),  Colorado  (1876),  South  Dakota  (1889), 
Washington  (1889),  and  North  Dakota  (1895). 

But  questions  of  boundary,  territorial  extent  of  a  state,  and 
suffrage  are  constitutional  in  their  nature  rather  than  subjects 
of  ordinary  legislation.  The  estabhshment  of  a  democratic 
government  involves  two  things:  determining  who  shall  be 
quahfied  to  exercise  powers  of  government,  and  clearly  de- 
fining the  territory  over  which  the  government  shall  have 
jurisdiction.  The  question  of  suffrage  pertains  to  the  former 
1  Journal  of  Convention,  p.  463. 


§  247]  State  Debt  325 

—  a  definition  of  the  electorate  as  one  of  the  agencies  of  govern- 
ment —  one  created  for  expressing  public  opinion.  The  ques- 
tion of  boundaries  pertains  to  the  latter,  the  definition  of 
territorial  jurisdiction.  Both  of  these,  as  well  as  determining 
the  number  and  powers  of  ofiicers,  are  essential.  PoHtical 
organization  and  territorial  hmits  being  essential  parts  of  the 
constitution,  all  questions  regarding  suffrage,  change  in  boimda- 
ries,  cessions,  and  annexations  of  territory  should  have  the 
same  sanctions,  theoretically,  as  other  portions  of  the  consti- 
tution. 

247.   State  Debt 

Beginning  with  the  undertaking  of  New  York  to  build  the 
Erie  Canal,  one  state  after  another  began  a  series  of  local 
improvements,  partly  as  state  works  and  partly  as  private  en- 
terprises to  which  the  states  lent  financial  aid.  The  poHcy  was 
scarcely  more  than  entered  upon  when  the  advantages  to  be 
derived  from  the  improvements,  the  contracts  for  direct  con- 
struction, and  the  aids  to  individuals  and  companies  became 
the  most  conspicuous  factor  in  local  as  well  as  in  national 
politics.  The  pressure  for  appropriations  and  authorizations 
of  this  kind  was  so  great  and  the  interest  in  estabhshing  an 
efficient  system  of  acquisition  and  administration  so  slight  that 
within  a  few  years  the  indebtedness  in  practically  every  state 
in  the  union  had  exceeded  its  borrowing  power. 

Eliminating  these  strictly  constitutional  questions,  therefore, 
we  find  that  the  first  provisions  for  the  referendum  in  ordinary 
legislation  had  to  do  with  finance.  In  1842  the  people  of 
Rhode  Island  incorporated  in  their  constitution,  by  amend- 
ment, the  following:  "The  General  Assembly  shall  have  no 
power  hereafter,  without  the  express  consent  of  the  people,  to 
incur  State  debts  to  an  amount  exceeding  fifty  thousand  dollars, 
except  in  time  of  war,  or  in  case  of  insurrection  or  invasion; 
nor  shall  they  in  any  case  without  such  consent  pledge  the  faith 
of  the  State  for  the  payment  of  the  obUgations  of  others." 

In  1843  ^  Michigan  amended  her  constitution  by  requiring 
1  Mich.  Am.,  1843,  to  Const.,  1835. 


326        Referendum  on  General  Statutes      [§  247 

"every  law  authorizing  the  borrowing  of  money  or  the  issuing 
of  state  stocks,  whereby  a  debt  shall  be  created  on  the  credit  of 
the  State,  shall  specify  the  object  for  which  the  money  shall 
be  appropriated;  and  that  every  such  law  shall  embrace  no 
more  than  one  such  object,  which  shall  be  simply  and  specifically 
stated,  and  that  no  such  law  shall  take  effect  until  it  shall  be 
submitted  to  the  people  at  the  next  general  election  and  be 
approved  by  a  majority  of  the  votes  cast  for  and  against  it  at 
such  election." 

New  Jersey,  in  her  constitution  of  1844,^  made  provision 
that:  "The  legislature  shall  not,  in  any  manner,  create  any 
debt  or  debts,  liability  or  habilities  of  the  State,  which  shall 
singly  or  in  the  aggregate,  with  any  previous  debts  or  Habili- 
ties, at  any  time  exceed  one  hundred  thousand  dollars,  except 
for  purposes  of  war,  or  to  repel  invasion,  or  to  suppress  insurrec- 
tion, unless  the  same  shall  be  authorized  by  a  law  for  some  single 
object  or  work  to  be  distinctly  specified  therein,  which  law 
shall  provide  the  ways  and  means,  exclusive  of  loans,  to  pay 
the  interest  of  such  debt  or  hability  as  it  falls  due,  and  also 
to  pay  and  discharge  the  principal  of  such  debt  or  UabiUty  within 
thirty-five  years  from  the  time  of  the  contracting  thereof,  and 
shall  be  irrepealable  until  such  debt  or  liability  and  the  interest 
thereon  are  fully  paid  and  discharged,  and  no  such  law  shall 
take  effect  until  it  shall  at  a  general  election  have  been 
submitted  to  the  people  and  have  received  the  sanction  of 
a  majority  of  all  the  votes  cast  for  and  against  it  at  such 
elections,"  etc. 

These  provisions  for  the  employment  of  the  referendum  were 
clearly  the  outgrowth  of  the  financial  excesses  and  abuses  of 
legislative  agents.  They  were  the  forerunners  of  the  many 
provisions  in  later  constitutions  for  electoral  action  in  matters 
of  state  debts  and  Habilities,  viz.:  New  York  and  Iowa,  in  1846; 
Illinois,  in  1848;.  California,  in  1849;  Kentucky,  in  1850; 
Kansas,  in  1859;  Nebraska,  in  1866;  North  Carolina  and 
Arkansas,  in  1868;  Missouri,  in  1875;  Colorado,  in  1876; 
IN.  J.  Const.,  1844,  IV,  6. 


§248]  State  Capitals  327 

Louisiana,  in  1879;   Idaho,  Montana,  Washington,  Wyoming, 
in  1889;  South  Carolina,  in  1895,  and  Oklahoma,  in  1907. 

248.  State  Capitals 

One  of  the  results  of  the  lavish  expenditures  on  public  works 
in  the  early  part  of  the  last  century  was  a  mania  for  land  specu- 
lation. Great  undeveloped  territories  were  quickly  settled; 
town  sites  were  laid  out  and  lots  sold  at  prices  which  discounted 
the  possible  development  for  years  at  points  where  trans- 
portation or  other  prospective  enterprise  suggested  a  centre 
of  population.  Among  the  elements  which  go  to  make  up 
a  town  is  the  location  of  government  seats.  Therefore  in 
the  new  territory  in  process  of  settlement  such  action  taken 
or  to  be  taken  by  officers  was  made  a  part  of  party  strat- 
egy and  the  selection  of  the  site  a  part  of  the  spoils  to  be 
distributed. 

The  second  class  of  general  legislation  in  which  the  referendal 
device  was  employed  was  that  of  providing  for  the  location  of 
the  seats  of  state  government.  The  first  state  to  adopt  its  use 
was  Texas  in  1845  (art.  Ill,  sec.  35),  a  new  and  a  very  large 
state.  Many  of  its  inhabitants  came  from  states  where  specu- 
lation in  pubUc  lands  was  rife  and  in  which  the  location  of  pubhc 
buildings,  state  and  county  seats  had  played  a  leading  part. 
Connivance  of  legislative  and  executive  agents  with  specula- 
tors and  spoilsmen  suggested  that  the  people  withdraw  author- 
ity from  these  agents  and  reserve  to  the  electorate  the  right  of 
determining  the  location  of  state  institutions. 

The  Texas  constitution  further  pro\dded:  "In  order  to  settle 
permanently  the  seat  of  government,  an  election  shall  be 
holden  throughout  the  State  at  the  usual  places  of  holding  elec- 
tions, on  the  first  Monday  in  March,  one  thousand  eight  hun- 
dred and  fifty,  which  shall  be  conducted  accordmg  to  law;  at 
which  time  the  people  shall  vote  for  such  place  as  they  may  see 
proper  for  the  seat  of  government.  The  returns  of  the  said 
election  to  be  transmitted  to  the  governor  by  the  first  Monday 
in  June;  if  either  place  voted  for  shall  have  a  majority  of  the 


328         Referendum  on  General  Statutes      [§  249 

whole  number  of  votes  cast,  then  the  same  shall  be  the  perma- 
nent seat  of  government  until  the  year  one  thousand  eight 
hundred  and  seventy,  unless  the  State  shall  sooner  be  divided. 
But  in  case  neither  place  voted  for  shall  have  a  majority  out  of 
the  whole  number  of  votes  given  in,  then  the  governor  shall 
issue  his  proclamation  for  an  election  to  be  holden  in  the  same 
manner,  on  the  first  Monday  in  October,  one  thousand  eight 
hundred  and  fifty,  between  the  two  places  having  the  highest 
number  of  votes  at  the  first  election."  ^ 

Oregon,  in  1857,  provided  that:  "The  Legislative  Assembly 
shall  not  have  power  to  establish  a  permanent  seat  of  govern- 
ment for  this  State;  but  at  the  first  regular  session  after  the 
adoption  of  this  constitution  the  Legislative  Assembly  shall 
provide  by  law  for  the  submission  to  the  electors  of  this  State, 
at  the  next  general  election  thereafter,  the  matter  of  the  selec- 
tion of  a  place  for  a  permanent  seat  of  government;  and  no 
place  shall  ever  be  the  seat  of  government  under  such  law 
which  shall  not  receive  a  majority  of  all  the  votes  cast  in  the 
matter  of  such  election."  The  other  states  following  the 
example  of  Texas  were:  Minnesota,  in  1857;  Kansas,  in  1858 
and  1859;  Florida,  in  1S68;  Colorado,  in  1876;  Georgia,  in 
1877;  Nebraska,  in  1875;  Idaho,  Montana,  South  Dakota, 
and  Washington,  in  1889;  Mississippi,  in  1890. 

249.  State  Banks 

Another  incident  of  speculation  growing  out  of  the  use  of  state 
funds  and  the  granting  of  privileges  and  subsidies  to  private 
parties  was  what  is  known  as  "wild-cat"  banking.  The  first 
step  toward  the  wrecking  of  private  as  well  as  state  credit  was 
to  make  the  granting  of  charters  a  reward  for  partisan  service. 
The  next  step  was  to  throw  the  funds  of  the  federal  treasury 
into  the  pool  of  politics  by  loaning  them  to  local  banks  without 
interest.  The  third  step  was  to  dissolve  the  bank  of  the  United 
States  because  so  long  as  it  existed  it  exercised  a  controlling 

^  Similar  provisions  are  found  in  the  Texas  constitutions  of  1866  (III,  ss) 
and  1868  (III,  37). 


§2491  State  Banks  329 

iBfluence  over  local  banking  practices  by  affording  people  a  safe 
and  orderly  way  of  doing  business. 

Banks  and  banking  have  been  among  the  most  frequent 
subjects  of  legislation  in  which  the  referendum  has  been  em- 
ployed. In  this  Iowa  took  the  initiative.  The  following 
provision  was  inserted  in  its  constitution  of  1846:  "No  act  of 
the  General  Assembly  authorizing  or  creating  corporations  or 
associations  with  banking  powers,  nor  amendments  thereto, 
shall  take  effect,  or  in  any  manner  be  in  force,  until  the  same  shall 
have  been  submitted  separately  to  the  people  at  a  general  or 
special  election  as  provided  by  law,  to  be  held  not  less  than 
three  months  after  the  passage  of  the  act,  and  shall  have  been 
approved  by  a  majority  of  all  the  electors  voting  for  and  against 
it  at  such  election."  ^ 

In  1848  Illinois  ^  followed  the  example  of  Iowa  in  almost  exact 
terms.^  The  constitution  of  Wisconsin,  adopted  the  same  year, 
contains  the  following:  "The  legislature  may  submit  to  the 
voters  at  any  general  election  the  question  of  'bank  or  no 
bank,'  and  if  at  any  such  election  a  number  of  votes  equal  to  a 
majority  of  all  the  votes  cast  at  such  election  on  that  subject 
shall  be  in  favor  of  banks,  then  the  legislature  shall  have  power 
to  grant  bank  charters,  or  to  pass  a  general  banking  law;  with 
such  restrictions  and  under  such  regulations  as  they  may  deem 
expedient  and  proper  for  the  security  of  the  bill  holders;  Pro- 
vided, that  no  such  grant  or  law  shall  have  any  force  or  effect 
until  the  same  shall  have  been  submitted  to  a  vote  of  the  electors 
of  the  State  at  some  general  election,  and  been  approved  by  a 
majority  of  the  votes  cast  on  that  subject  at  such  election." 

In  Michigan  the  provision  took  a  still  more  general  form. 
Section  2  of  article  XV  of  the  constitution  of  1850  provided: 
"No  banking  law,  or  law  for  banking  purposes,  or  amendments 

1  The  constitution  of  Iowa,  1857,  VIII,  5,  made  this  same  provision. 

2  111.  Const.,  1848,  X,  5. 

'The  language  is  similar  except  that  "nor  amendments  thereto"  is 
dropped  after  "banking  powers,"  and  it  does  not  provide  for  a  special 
election.  The  constitution  of  Illinois,  1870  (XI,  5),  adds  after  "banking 
powers"  "  whether  of  issue,  deposit,  or  discount,  nor  amendments  thereto." 


330    Referendum  on  General  Statutes  [§§  250,251 

thereof,  shall  have  effect  until  the  same  shall,  after  its  passage, 
be  submitted  to  a  vote  of  the  electors  of  the  State,  at  a  general 
election,  and  be  approved  by  a  majority  of  the  votes  cast  thereon 
at  such  election."  ^ 

The  provisions  of  the  constitutions  of  Ohio  (1851,  VIII,  5) 
and  of  Kansas  (1859,  XIII,  8)  followed  that  of  Michigan,  while 
the  Missouri  constitution  of  1875  followed  that  of  Illinois. 
The  federal  banking  acts  of  1863  by  taxing  out  of  existence 
the  "issue"  function  of  state  banks,  made  inoperative  this  class 
of  constitutional  provisions. 

250.   Sale  of  School  Land 

Even  the  lands  which  had  been  given  to  states  and  local 
jurisdictions  for  school  purposes  were  soon  dragged  into  the 
mire  of  poHtics.  The  two  sections  (1280  acres)  which  were  given 
to  each  township,  became  enhanced  through  later  improve- 
ments and  the  possible  advantages  to  individuals  which  might 
accrue  through  contracts  made  with  officers  for  sale  became 
obvious.  Many  local  scandals  of  this  kind  might  be  recorded, 
but  the  only  restriction  on  the  sale  of  school  lands  appears  in 
the  Kansas  constitution  of  1 861.2  ^'x^e  school  lands  shall  not 
be  sold  unless  such  sale  be  authorized  by  a  vote  of  the  electorate 
at  the  general  election." 

251.  Aid  to  Railroads 

Legislation  relating  to  state  aid  to  railways  furnished  many 
of  the  best  opportunities  for  promoters  to  profit  at  pubhc 
expense.^  This  subject  was  first  brought  within  the  constitu- 
tional provisions  for  referendum  by  Minnesota  in  the  constitu- 
tional amendment  of  i860,  to  the  effect  that:  "No  law  levying 
a  tax,  or  making  other  provision  for  the  payment  of  interest  or 
principal  of  the  bonds  denominated  'Minnesota  State  Railroad 

*  This  provision  was  amended  in  1862. 

2  Kans.  Const.,  1859,  VI,  5. 

3  See  Cleveland  and  Powell,  The  Promotion  and  Capitalization  of  Rail- 
roads in  the  United  States  (19 10). 


§252]  Taxation  331 

bonds '  shall  take  effect  or  be  in  force  until  such  law  shall  have 
been  submitted  to  a  vote  of  the  people  of  the  State  and  adopted 
by  a  majority  of  the  electors  of  the  State  voting  upon  the 
same." 

This  amendment  grew  out  of  the  issue  of  $5,000,000  of  bonds 
to  aid  in  the  construction  of  certain  railroads;  the  companies 
receiving  the  aid  failed  to  meet  the  conditions  imposed  on  them 
and  left  the  people  to  pay  a  large  indebtedness  under  conditions 
very  different  from  those  which  were  made  the  basis  of  the 
grant.  After  the  adoption  of  the  amendment  several  unsuccess- 
ful laws  were  passed  by  the  legislature  providing  an  adjustment 
of  the  claims.^  Finally,  the  state  courts  having  declared  the 
amendment  unconstitutional  on  the  ground  that  it  contravened 
the  constitution  of  the  United  States,^  the  affair  was  adjusted 
by  the  legislature  without  the  consent  of  the  people  expressed 
through  the  electorate. 

In  Missouri  in  1865,  at  the  time  of  submitting  a  new  constitu- 
tion, the  question  of  an  ordinance  which  provided  for  the  pay- 
ment of  certain  railway  bonds  was  referred  to  the  electorate  by 
an  act  of  the  constitutional  convention.^ 

In  Illinois,  West  Virginia,  Nebraska,  Alabama,  Colorado, 
and  Texas,  provisions  were  made  that  the  legislatures  of  these 
states  should  not  grant  any  right  to  construct  street  railways 
in  cities,  towns,  or  villages  or  upon  pubHc  highways  without 
the  consent  of  the  electors  or  local  authority. 

262.   Taxation 

The  referendum  was  first  employed  in  taxation  under  the 
Illinois  constitution  of  1848,  which  provided  that  upon  the 
submission  of  the  law  for  the  increase  of  the  state  indebtedness 
over  $50,000  "provision  shall  be  made  at  the  time  for  the 
payment  of  the  interest  annually  as  it  shall  accrue,  by  a  tax 

1  The  first  attempt  was  in  1866,  the  second  in  1867,  the  third  in  1870, 
and  the  fourth  in  187 1. 

2  The  court  took  the  ground  that  the  amendment  was  an  impairment  of 
the  obHgation  of  contracts.     See  State  v.  Young,  29  Minn.  474. 

*  Poore,  B.  P.,  Charters  and  Constitutions,  vol.  ii,  p.  1162,  sec.  7. 


332        Referendum  on  General  Statutes       [§  253 

levied  for  the  payment  of  such  interest,  but  such  tax  shall  be 
irrepealable  until  such  debt  be  paid;  and  provided,  further: 
That  the  law  levying  the  tax  shall  be  submitted  to  the  people 
with  the  law  authorizing  debt." 

Colorado  in  1876  adopted  the  following  provision:  "The 
rate  of  taxation  on  property  for  the  State  purposes  shall  never 
exceed  sLx  mills  .  .  .  and  whenever  the  taxable  property  within 
the  State  shall  amount  to  $100,000,000  the  rate  shall  not  exceed 
four  mills;  .  .  and  whenever  the  taxable  property  within 
the  State  shall  amount  to  $300,000,000  the  rate  shall  never 
thereafter  exceed  two  mills  .  .  .  unless  the  proposition  to 
increase  such  rate,  ...  be  first  submitted  to  a  vote  of  such  of 
the  quaUfied  electors  of  the  State  as  in  the  year  next  preceding 
such  election  shall  have  paid  a  property  tax  assessed  to  them 
within  the  State,  and  a  majority  of  those  voting  thereon  shall 
vote  in  favor  thereof,  in  such  manner  as  provided  by  the 
law." 

Very  similar  pro\'isions  are  found  in  the  constitutions  of 
Idaho  ^  and  Montana.^  Illinois,  in  the  constitution  of  1870, 
also  placed  a  referendal  restriction  on  state  expenditures. 
Section  33,  article  IV,  reads  as  follows:  "The  General  Assembly 
shall  not  appropriate  out  of  the  State  treasury  or  expend  on 
account  of  the  new  capital  groimds,  and  construction,  com- 
pleting, and  furnishing  of  the  state-house,  a  sum  exceeding  in 
the  aggregate  $3,500,000,  inclusive  of  appropriations  heretofore 
made,  without  first  submitting  the  proposition  for  an  additional 
expenditure  to  the  legal  voters  of  the  State,  at  a  general  election; 
nor  unless  a  majority  of  all  the  votes  cast  at  such  election  shall 
be  for  the  proposed  additional  expenditures." 

253.   Summary  of  State-wide  Referenda 

The  following  subjects,  therefore,  are  found  to  be  in  the 
first  class   of   constitutional  provisions  for  electoral  co-opera- 
tion in  acts  of  government :    the  annexation  of  territory  and 
state  boundaries  ;   the  extension  of  the  suffrage ;   the  incurring 
1  Ida.  Const.,  1889,  VII,  9.  *  Mont.  Const.,  18S9,  XII,  9. 


§253]  Summary  333 

of  state  indebtedness,  the  lending  of  the  credit  of  the  state; 
the  location  of  seats  of  government  and  state  institutions; 
laws  for  the  incorporation  of  banking  institutions;  the  sale  of 
school  lands;  state  aid  to  railways;  provisions  for  education; 
taxation,  and  appropriation  for  state  purposes. 


CHAPTER  XXIV 

THE  MORE  RECENT  GENERAL  PROVISIONS  FOR 

REFERENDUM 

264.  References 

Bibliography:  Select  List  of  References  on  the  Initiative,  Referendum  and 
Recall  (Library  of  Congress,  191 1);  C.  B.  Galbreath,  Initiative  and  Refer- 
endum (Ohio  Legislative  Reference  Department,  191 1);  C.  H.  Talbot,  7m7Ja- 
tive  and  Referendum  (Wis.  Comparative  Legislation,  Bulletin  No.  21,  1910); 
W.  B.  Munro,  The  Initiative,  Referendum  and  Recall  (1912),  ch.  xvi; 
R.  C.  Ringwalt,  Briefs  on  Public  Questions  (1905),  50-58;  S.  Deploige, 
The  Referendum  in  Switzerland  (1898),  315-322;  C.  S.  Lobingier,  The 
People's  Law  (1909),  395-409. 

The  Initiative  and  Referendum  in  ExmoPE:  S.  Deploige,  The  Refer- 
endum in  Switzerland  (1898);  S.  R.  Honey,  Referendum  among  the  English 
(191 2);  K.  Kantsky,  Parliamentarismus  und  Demokratie  (1911);  O.  Krueger, 
Das  Recht  der  Initiative  der  Volksvertretungskoerper  (1908);  W.  D.  Mc- 
Cracken,  Swiss  Solution  of  American  Problems  (1894);  C.  D.  Sharp,  The 
Case  against  the  Referendum  (The  Fabian  Society,  Tract  No.  155,  London, 
1911);  H.  D.  Lloyd,  A  Sovereign  People:  A  Study  of  Swiss  Democracy  (1907); 
A.  L.  Lowell,  Government  and  Parties  in  Continental  Europe,  II,  272-300, 
322-332. 

The  Initiative  and  Referendum  in  America:  Beard  and  Schultz, 
Documents  on  the  State-Wide  Initiative,  Referendutn  and  Recall  (191 2);  J. 
Bourne,  Popular  v.  Delegated  Government  (Speech,  U.  S.  Senate,  May  5, 
1910);  J.  Boyle,  The  Initiative  and  Referendum  (1912);  N.  M.  Butler,  Why 
shoidd  we  change  our  form  of  government?  (191 2);  F.  V.  Holman,  Address 
before  the  Oregon  Bar  Association  (1910);  C.  S.  Lobingier,  The  People's  Law 
(1909),  249;  H.  Lieb,  The  Initiative  and  Referendum  (1902);  E.  P.  Ober- 
holtzer,  The  Referendum  in  America  (1911),  chs.  xiii,  xvii,  xix;  E.  P.  Ober- 
holtzer.  Law  making  by  popular  vote  (Acad,  of  Pol.  Sci.,  Publications,  No. 
40);  R.  L.  Owen,  The  Code  of  the  People's  Ride  {Senate  Docs.,  61  Cong. 
2d  sess.,  LXI,  No.  603);  C.  H.  Talbot,  The  Initiative  and  Referendum  (Wis. 
Comparative  Legislation,  Bulletin  No.  21,  1910);  M.  A.  Scha£fner,  The  In- 
itiative and  Referendum  (Ibid.,  No.  11,  1907);  F.  H.  Skrine,  True  Democracy 
versus  Government  by  Faction  (191 1);  W.  S.  U'Ren,  The  Results  of  the  Initia- 
tive and  Referendum  in  Oregon  (Am.  Pol.  Sci.  Assoc,  Proceedings,  IV,  193- 
197);  A  Pamphlet  containing  a  Copy  of  All  Measures  referred  to  the  People 
by  the  Legislative  Assembly,  Referendum  Ordered  by  Petition  of  the  People, 
and  Proposed  by  Initiative  Petition,  together  with  arguments  filed,  favoring  and 


§255]  General  Provisions  335 

opposing  certain  of  said  measures  (Published  for  everj'  election  by  the  State 
of  Oregon);  Equity  Series,  VIII-XIII;  The  Arena;  Direct  Legislation  Record 
(1894-1903),  i-ix. 


256.  Development  of  the  General  Provisions  for  Referendum 

There  can  be  no  reasonable  doubt  of  the  value  of  a  referendum 
on  such  far-reaching  and  debatable  policies  as  state  prohibition, 
free  public  school  system,  and  the  like,  which  \itally  concern 
every  citizen.  The  difficulty  in  attempting  to  enumerate  sub- 
jects for  the  referendum  is  that  no  constitutional  convention 
can  foresee  what  poUcies  may  be  in  controversy  in  the  future, 
and  therefore  cannot  specify  those  subjects  in  the  constitu- 
tion. The  many  amendments  to  the  written  constitutions  of 
more  recent  date  are  partly  due  to  this  fact,  and  partly  to  a 
widespread  beUef  that  the  legislatures  are  not  sufficiently 
responsive  to  popular  opinion  —  that  officers  of  the  government 
are  too  ready  to  obey  the  demands  of  predatory  interests  instead. 
State  after  state  since  1898  has  adopted  constitutional  amend- 
ments which  authorize  the  voters  to  call  for  a  referendum  on 
all  acts  of  the  legislature,  except  those  dealing  with  questions 
of  immediate  necessity.  That  is,  these  amendments  provide 
for  referendum  on  all  subjects  where  the  purpose  of  the  proposed 
legislation  would  not  be  defeated  by  delay.  Some  of  these 
amendments  go  farther,  by  granting  to  the  voters  the  right  to 
initiate  measures  which  a  legislature  may  refuse  to  enact  —  the 
measures  to  become  laws  in  case  they  are  approved  by  the 
voters;  several  states  even  permit  the  initiation  of  amendments 
to  the  constitution  by  petition  of  voters. 

The  first  initiative  and  referendum  amendment  applying  to 
all  acts  of  general  legislation  was  adopted  in  South  Dakota  in 
1898,  by  inserting  after  the  words,  "The  legislative  power  shall 
be  vested  in  a  legislature  which  shall  consist  of  a  senate  and  a 
house  of  representatives,"  the  following  provision:  that  "the 
people  expressly  reserve  to  themselves  the  right  to  propose 
measures,  which  measures  the  legislature  shall  enact  and  submit 
to  a  vote  of  the  electorate  of  the  State";  and  further  that  the 


336  Provisions  for  Referendum     [§§256,257 

people  have  the  right  "to  require  that  any  laws  which  the  legis- 
lature may  have  enacted  shall  be  submitted  to  a  vote  of  the 
electors  of  the  state  before  going  into  effect,  except  such  laws 
as  may  be  necessary  for  the  immediate  preservation  of  the 
peace,  health,  or  safety,  support  of  the  state  government  or  its 
existing  public  institutions."  ^ 

256.  Present  Status  of  the  Initiative  and  Referendum 

Since  1898  the  following  states  have  made  initiative  and 
referendum  amendments  of  a  similar  character :  Utah  in  1900;  ^ 
Oregon^  in  1902;  Montana'*  in  1906;  Oklahoma^  in  1907; 
Maine ^  and  Missouri''  in  1908;  Arkansas  and  Colorado  in  1910  ;  ^ 
Arizona  and  California  in  191 1;  Ohio,  Nebraska,  Washington, 
and  Mississippi  in  191 2.  The  referendum  without  the  initia- 
tive was  adopted  in  Nevada  in  1904  ^  and  New  JNIexico  in 
191 1.  At  the  present  time  (191 3)  initiative  and  referen- 
dum measures  are  pending  in  four  states  —  North  Dakota, 
Nevada,  Indiana,  and  Wisconsin;  while  in  Idaho  a  referendum 
amendment  without  the  initiative  has  been  proposed.^" 

257.  Analysis  of  Referendum  Provisions 
All  of  these  amendments  proposed  and  adopted  provide  for 
the  referendum;  all  but  two  provide  for  the  initiative;  and  five 
of  the  eight  proposed  amendments  of  191 1  follow  the  example 
of  Oregon,  Oklahoma,  and  Missouri  by  providing  for  the  amend- 
ment of  the  constitution  by  means  of  the  initiative.    In  Oregon, 

1  S.  D.  Laws,  1897,  ch.  39,  sec.  182. 

*  Const.,  art.  VI,  sec.  i. 

3  Laws  of  1899,  p.  1 1 29;  1901,  p.  4;  1903,  p.  444. 

*  Laws  of  1905,  ch.  61;  1907,  ch.  62. 
^  Const.,  1907,  art.  V,  sees.  4,  5. 

*  Acts  and  Resolves,  ch.  121,  p.  476. 
'  Laws  of  1907,  p-.  452. 

8  Laws  of  Extra  Session,  1910,  p.  11.' 
»  Laws,  2d  Sess.,  1905,  pp.  339,  34°- 

"  Equity  Series,  XIII,  No.  3;  Oberholtzer,  E.  P.,  The  Referefidum, 
Initiative  aiid  Recall  in  America  (1911),  p.  426. 


§258]  Difficulties  of  Application  337 

Oklahoma,  and  Maine  the  people  may  demand  a  referendum 
on  a  part  of  a  legislative  act;  while  in  Maine  the  legislature 
may  propose  an  alternative  to  an  initiative  measure  whenever 
it  desires.  In  practically  all  of  them,  urgent  measures  are 
excepted  from  the  referendum. 

The  number  of  signatures  required  for  initiative  and  referen- 
dum measures  ranges  in  some  states  between  five  and  twenty-five 
per  cent  of  the  electors  who  voted  for  the  candidates  for  some 
specified  state  ofl&ce  at  the  preceding  election;  in  others  between 
five  and  twenty-five  per  cent  of  the  total  number  of  legal  electors 
of  the  state;  while  in  still  others  a  specified  percentage  of  signa- 
tures must  be  obtained  in  all  or  part  of  the  counties  or  other 
poHtical  units.  About  one-half  of  the  amendments  require  a 
larger  percentage  of  petitioners  for  initiative  measures  than  for 
referendum  measures. 

258.  Difficxxlties  in  Working  the  Initiative  and  Referendum 

Notwithstanding  that  these  amendments  have  been  in  force 
for  a  decade  or  more  in  several  states,  the  method  has  been 
thoroughly  tested  in  only  one  state  —  Oregon.  There  are 
several  reasons  for  this  situation.  The  South  Dakota  amend- 
ment provides  that  an  initiative  measure  must  be  approved 
by  the  state  legislature  before  it  can  be  submitted  to  the  voters. 
This  the  legislature  has  refused  to  do  in  several  cases  and  there 
is  no  constitutional  way  of  reaching  the  legislature.  In  Utah 
the  legislature  must  enact  a  detailed  statute  before  the  amend- 
ment can  be  operated,  and  this  the  state  legislature  has  failed 
to  do.  The  Missouri  and  Montana  amendments  prescribe  that 
the  percentage  of  signatures  specified  for  initiative  measures 
must  be  obtained  in  at  least  two-fifths  of  the  counties  of  the 
state,  which  is  a  handicap  hard  to  overcome.  The  Oklahoma 
amendment  contains  the  provision  that  initiative  measures  and 
constitutional  amendments,  whether  proposed  through  the 
initiative  or  the  state  legislature,  must  receive  a  majority  of 
the  votes  cast  for  elective  state  officers ;  and  since  the  vote  for 
candidates  is  always  larger  than  the  vote  for  measures,  a  number 
23 


338  Provisions  for  Referendum  [§258 

of  measures  which  have  been  carried  by  large  pluralities  have 
failed  of  enactment. 

Let  us  consider  very  briefly  the  attempts  to  apply  the  initia- 
tive and  referendum  under  these  Umitations  before  passing  to 
popular  legislation  in  Oregon.  The  South  Dakota  provision 
remained  inoperative  for  ten  years.  In  1908  four  measures  were 
submitted  to  the  voters,  one  through  the  initiative  and  three 
through  the  referendum :  the  initiative  measure  was  defeated 
and  the  three  referendum  measures  were  adopted.  In  the 
next  general  election  six  measures  were  submitted  to  the  voters, 
one  through  the  initiative  and  five  through  the  referendum, 
and  in  this  case  all  were  rejected.  Hence  in  both  elections  the 
initiative  measures  were  defeated,  while  the  legislature  has 
been  sustained  on  three  measures  and  defeated  on  five.  In 
the  first  election  from  seventy  to  eighty-seven  per  cent  of  the 
electors  who  voted  for  governor  expressed  themselves  on  these 
measures,  while  in  19 10  this  percentage  ranged  from  seventy- 
one  to  ninety- two  per  cent.^ 

The  Oklahoma  experience  is  limited  to  the  two  elections  of 
1908  and  1 910.  In  the  first  election  one  measure  was  proposed 
through  the  initiative  and  three  constitutional  amendments 
were  submitted  by  the  legislature,  all  of  which  required  for 
adoption  a  majority  vote  of  those  votmg  for  state  officers. 
As  a  result  all  were  rejected,  although  two  of  them  received 
majorities  of  those  voting  on  them  of  30,506  and  48,419  re- 
spectively. In  1910  two  special  elections  were  held.  At  the 
first,  two  initiative  measures  were  voted  upon,  one  being  accepted 
and  the  other  rejected,  but  the  court  declared  the  election  null 
and  void.  At  the  second  election  one  uiitiative  measure  was 
voted  upon  and  accepted  by  the  electors.  In  the  general 
election  of  19 10  six  measures  were  submitted  to  the  voters. 
Four  of  these  were  constitutional  amendment  proposals,  two 
submitted  through  the  initiative  and  two  by  the  state  legislature. 
All  of  the  six  proposals  were  rejected,  although  two  of  them 
received  a  majority  of  those  voting  on  them  of  58,603  and 

1  Oberholtzer,  E.  P.,  The  Referendum  in  America  (1911),  pp.  391-96. 


§2591  Referendum  in  Oregon  339 

27,994  respectively.  The  average  vote  cast  upon  these  six 
measures  was  seventy-three  per  cent  of  the  vote  cast  for 
governor.^ 

The  Maine  amendment  contains  none  of  the  hmitations 
which  make  the  operation  of  popular  legislation  difficult,  but 
the  short  period  during  which  popular  legislation  has  been 
legaHzed  does  not  furnish  an  opportunity  for  any  definite  conclu- 
sions. The  four  measures  which  have  been  acted  upon  under 
this  amendment,  however,  are  interesting,  since  opponents  of 
the  system  have  used  the  small  vote  cast  as  an  evidence  of 
failure  in  popular  legislation.  On  two  of  these  measures  the 
vote  cast  was  less  than  forty  per  cent  of  the  vote  cast  for  gov- 
ernor, but  both  of  these  measures  were  of  purely  local  interest, 
as  is  shown  by  their  titles:  (i)  An  act  to  divide  the  town  of  York 
and  estabhshing  the  town  of  Gorges;  (2)  An  act  authorizing  the 
reconstruction  of  the  bridge  of  Portland  Harbor,  etc.^  The 
sixty  per  cent  who  refused  to  express  themselves  upon  these 
measures,  owing  to  their  justifiable  ignorance  and  lack  of  interest 
in  such  local  measures,  showed  a  high  degree  of  intelhgence. 
Here  the  fault  lies  not  with  popular  legislation,  but  with  the 
constitutional  system  of  Maine  which  places  the  disposal  of 
such  local  questions  with  the  state  legislature. 

259.  The  Referendum  in  Oregon 

In  Oregon,  on  the  other  hand,  both  the  initiative  and  referen- 
dum have  been  extensively  used  in  the  five  elections  of  1904, 
1906,  1908,  1910,  and  191 2  ^  in  the  enactment  of  general  laws 
and  in  the  adoption  of  amendments  to  the  constitution.  In 
1904  two  measures  were  submitted  under  the  initiative  (the 
Direct  Primary  Act  and  the  Local  Option  Act)  and  both  were 
adopted.  In  1906  nine  initiative  and  one  referendum  meas- 
ures were  submitted,  three  of  which  were  rejected  and  seven 

1  Oberholtzer,  E.  P.,  The  Referendum  in  America  (1911),  pp.  416-19. 

*  Oberholtzer,  E.  P.,  The  Referendum  in  America  (rgii),  pp.  420-22. 

»  For  the  returns  of  the  elections  of  1904, 1906,  1908,  see  Speech  by  Hon. 
Jonathan  Bourne  in  the  Senate  of  the  U.  S.,  May  5,  1910,  p.  6.  For  the 
returns  of  1910  see  Equity,  January,  1911. 


340  Provisions  for  Referendum  [§  260 

adopted.  Two  of  those  adopted  were  amendments  to  the  con- 
stitution presented  under  the  initiative  —  one  giving  cities 
direct  power  to  amend  their  own  charters  and  the  other  requir- 
ing a  referendum  on  an  act  calling  a  constitutional  convention. 
In  1908  nineteen  measures  were  voted  upon,  eleven  under  the 
initiative,  four  under  the  referendum,  and  four  by  the  legisla- 
ture, and  of  these,  twelve  were  approved  and  seven  rejected.  In 
1910  twenty-five  measures  were  submitted,  eighteen  imder  the 
initiative,  one  under  the  referendum,  and  six  by  the  legislatiu-e, 
and  of  these  nine  were  adopted  and  sixteen  rejected.  But 
the  climax  was  reached  in  191 2  when  the  voters  were  called 
upon  to  act  upon  twenty  bills  and  eight  amendments  to  the 
constitution  introduced  under  the  initiative,  and  upon  four 
referendmn  measures  and  six  amendments  proposed  by  the 
legislature.  Eleven  of  these  measures  were  approved  and 
twenty-seven  rejected. 

The  average  number  of  votes  cast  upon  these  measures  at  the 
five  elections  was  seventy-five  per  cent  of  the  average  vote  cast 
for  governor.  That  such  interest  in  popular  legislation  is  not 
local  is  shown  by  the  experience  in  Oklahoma.  These  percent- 
ages are  significant  since  the  most  painstaking  students  of  the 
initiative  and  referendum  writing  prior  to  the  Oregon  experience 
contended  that  popular  legislation  would  result  in  the  enact- 
ment of  legislation  by  a  small  fraction  of  the  voters,  as  has  been 
the  case  in  the  adoption  of  constitutional  amendments. 

260.  Infonnation  for  Voters  in  Oregon 
The  reason  for  the  small  vote  upon  constitutional  amendments 
is  obvious;  no  attempt  has  usually  been  made  to  bring  these 
measures  before  the  people  in  an  intelligent  manner,  whereas 
an  elaborate  machinery  has  been  de\ised  to  bring  candidates 
and  party  poUcies  before  the  pubUc.  In  Oregon,  on  the  other 
hand,  every  measure  submitted  to  the  electors  is  printed  at 
state  expense  and  sent  to  every  voter  by  the  Secretary  of  State, 
together  with  arguments  pro  and  con  submitted  and  paid  for 
by   the  persons  interested.     These   measures   and   arguments 


§  26i]  Use  of  Initiative  341 

are  studied  by  the  voters,  and  it  is  therefore  not  surprising 
that  the  experience  of  Oregon  has  been  of  such  a  character 
as  to  refute  the  conclusions  arrived  at  from  prior  experience 
with  votes  on  constitutional  amendments. 

An  examination  of  the  measures  defeated  and  accepted  by  the 
voters  of  Oregon,  and  a  further  examination  of  the  size  of 
the  vote  cast  for  and  against  each  individual  measure,  reveals 
the  interesting  fact  that  the  voters  not  only  take  a  Hvely  interest 
in  proposed  legislation,  but  act  with  great  intelligence.  Meas- 
ures such  as  Direct  Primaries,  Corrupt  Practice  Acts,  Home 
Rule  for  Cities,  Prohibition  of  Free  Passes,  and  the  Hke  were 
carried  by  overwhelming  majorities;  whereas  such  debatable 
questions  as  local  option  were  carried  only  by  a  small  majority; 
and  acts  of  a  questionable  or  radical  character  are  invariably 
defeated.  Unless  it  is  proved  that  the  voters  of  Oregon  possess 
more  than  the  average  amount  of  intelligence,  it  is  obvious  that 
under  amendments  wliich  provide  adequately  for  getting  pro- 
posals before  the  people  similar  results  will  obtain  in  other  states. 

261.   Use  of  Initiative  in  Oregon 

Oregon  has  surprised  the  students  of  political  problems  in 
its  use  of  the  initiative.  Out  of  the  eighty-two  measures 
submitted  to  the  voters  in  the  five  elections,  sixty-five  were 
proposed  by  the  initiative.  While  originally  only  measures  of 
general  interest  were  thus  proposed,  in  the  last  election  (191 2), 
many  measures  of  a  technical  or  local  character  appeared 
among  the  twenty-eight  initiative  proposals.  Unless  the  fact 
that  the  voters  usually  reject  such  measures  will  act  as  a 
deterrent  in  the  future,  some  way  will  have  to  be  found  to 
limit  the  use  of  the  initiative  to  prevent  the  overburdening  of 
the  ballot  and  the  confusion  of  the  voters. 


CHAPTER  XXV 

LOCAL   LEGISLATION    BY    POPULAR  VOTE   UNDER 
CONSTITUTIONAL    PROVISIONS 

262.  References 

Bibliography:  Select  List  of  References  on  the  Initiative,  Referendum 
and  Recall  (Library  of  Congress,  191 2);  R.  C.  Brooks,  A  Bibliography  oj 
Municipal  Problems  and  City  Conditions  (1901),  60-61;  E.  S.  Bradford, 
Commission  Government  in  American  Cities  (1911),  343~353- 

Local  Legislation:  F.  A.  Cleveland,  The  Growth  of  Democracy  (1898), 
ch.  x;  E.  P.  Oberholtzer,  Referetidum  in  America  (191 1),  chs.  ix-xiv, 
xvii;  C.  A.  Beard,  American  Government  and  Politics  (1910),  chs.  xxiii, 
xxvii;  J.  Bryce,  Atnerican  Commonwealth  (rev.  ed.,  1910),  ch.  xxxix;  C.  S. 
Lobingier,  The  People's  Law  (1909),  ch.  xxvii. 

Municipal  Initiative  and  Referendum:  E.  S.  Bradford,  Commis- 
sion Government  in  American  Cities  (191  l.),  ch.  x.xiii;  F.  Parsons,  The  City 
and  the  People  (1901),  255-386,  505-522;  H.  E.  Deming,  The  Government 
of  American  Cities  (1909),  105-108;  F.  D.  Wilcox,  The  American  City 
(1904),  262-275. 

Magazines,  Periodicals,  etc.:  Political  Science  Quarterly  (1902),  xvii, 
609-630;  The  National  Municipal  League,  Proceedings,  esp.  1906,  1908, 
191 2;   Equity  Series ;   The  Arena. 

While  constitutional  provisions  for  electoral  participation 
in  local  legislation  reduce  the  amount  of  litigation  arising  from 
questions  concerning  the  constitutionaHty  of  laws,  the  net 
result  has  been  not  only  to  limit  judicial  discretion,  but  to  limit 
legislative  discretion  also.  By  these  provisions,  submission  of 
specific  questions  to  the  electorate  is  mandatory.  But  the 
power  of  the  legislature  under  the  unwritten  constitution  to 
invoke  the  referendum  or  require  its  use  as  a  condition  precedent 
to  the  final  enactment  of  local  laws  which  are  not  specified  in 
the  written  constitution  is  not  thereby  abridged.  As  a  general 
principle  the  legislature  has  the  power  to  enact  laws  on  any 
subject  and  to  adopt  any  procedure  which  is  not  expressly  or 
impliedly  denied  it. 


§  263]  Local  Jurisdictions  343 

263.  Establishing  Local  Jurisdictions 

Written  constitutional  provisions  providing  for  the  electoral 
participation  in  acts  of  local  government  comprehend  a  much 
wider  range  of  subjects  than  do  those  specifying  subjects  of 
general  legislation.  Within  this  class  falls  nearly  every  subject 
that  has  come  within  the  range  of  local-option  laws.  Histori- 
cally, Massachusetts  seems  to  be  entitled  to  the  honor  of  pioneer 
in  this  direction.  The  constitution  of  1820  made  provision  for 
the  establishment  of  municipalities  "with  the  consent  and  on 
the  appUcation  of  a  majority  of  the  inhabitants  .  .  .  voting."  ^ 
In  182 1  the  legislature  passed  a  law  estabUshing  the  city  of 
Boston,  which  law  was  to  be  void  "unless  the  inhabitants 
of  Boston  .  .  .  shall  by  written  vote,  determine  to  adopt  the 
same  within  twelve  days."^ 

One  of  the  most  common  constitutional  provisions  which  re- 
serves to  the  voters  the  right  to  co-operate  in  acts  of  government 
relates  to  the  changing  of  county  lines.  As  early  as  1834  the 
constitution  of  Tennessee  provided:  "No  part  of  a  county  shall 
be  taken  to  form  a  new  county,  or  a  part  thereof,  without  the 
consent  of  a  majority  of  the  qualified  voters  in  such  part  taken 
ofi";  whereas  the  Illinois  constitution  of  1848  prohibited  the 
division  of  any  county  by  state  law  without  the  approval  of  the 
legal  voters  of  the  entire  county  affected.  In  some  of  the  states 
the  participation  of  the  voters  is  more  restricted.  Accord- 
ing to  the  constitution  of  1848,  the  voters  of  Wisconsin  may 
participate  only  when  the  legislature  proposes  to  divide  counties 
"with  an  area  of  nine  hundred  square  miles  or  less,"  while  the 
voters  of  Michigan  are  restricted  to  an  expression  upon  laws 
which  aim  to  reduce  organized  counties  to  "less  than  sLxteen 
townships."  Similar  provisions  subject  to  variations  just  noted 
were  incorporated  into  the  constitutions  of  the  following  states 
at  a  later  date:  Tennessee  in  1870;  Ohio  and  Indiana  in  1851; 
Pennsylvania  in  1857;  Maryland  in  1867;  Illinois  in  1870;  West 

1  General  Laws  of  Mass.,  II,  ch.  CX,  p.  588. 

2  General  Laws  of  Mass.,  II,  ch.  CX,  sec.  3. 


344  Local  Popular  Legislation  [§  264 

Virginia  in  1872;  Arkansas  in  1874;  Missouri  and  Nebraska  in 
1875;  Colorado  and  Texas  in  1876;  Louisiana  in  1879  and  1902; 
Idaho,  North  Dakota,  and  South  Dakota  in  1889;  Kentucky 
in  1891;  South  Carolina  and  Utah  in  1895. 

264.  Location  of  Covinty  Seats 

A  second  group  of  provisions  for  electoral  co-operation  in 
acts  of  local  government  relate  to  the  removal  of  county  seats. 
The  Illinois  constitution  of  1848  contains  the  following  provision: 
"No  county  seat  shall  be  removed  until  the  point  to  which  it  is 
proposed  to  be  removed  shall  be  fixed  by  law  and  a  majority 
of  the  voters  of  the  county  shall  have  voted  in  favor  of  its 
removal  to  such  point,"  while  in  the  same  year  the  people  of 
Wisconsin  incorporated  a  similar  provision  into  their  constitu- 
tion with  the  significant  change  that  "a  majority  of  the  voters 
of  the  county  voting  on  the  question"  could  effect  the  change. 
In  some  of  the  states  the  removal  of  county  seats  was  made 
more  difficult.  Tennessee  provided  in  1870  that  "where  an 
old  county  is  reduced  for  the  purpose  of  forming  a  new  one  the 
old  seat  of  justice  in  said  old  county  shall  not  be  removed 
without  the  concurrence  of  two-thirds  of  both  branches  of  the 
legislature,  nor  .  .  .  without  the  concurrence  of  a  two-thirds 
vote  of  the  qualified  voters  of  the  county."  In  the  same  year 
lUinois  enlarged  upon  the  provision  of  1848  by  requiring  the 
assent  of  three-fifths  of  the  voters  of  the  county,  save  that 
when  an  attempt  is  made  to  remove  a  county  seat  "to  a  point 
nearer  the  centre  of  the  county,  ...  a  majority  vote  only 
shall  be  necessary,"  nor  could  the  question  of  removing  the 
covmty  seat  be  submitted  oftener  than  once  in  ten  years.  Five 
years  later  (1875)  the  constitution  of  Missouri  took  away  from 
the  legislature  the  power  to  remove  county  seats  and  required 
that  provisions  for  removal  shall  be  enacted  only  by  general 
law  and  shall  require  the  assent  of  "two-thirds  of  the  quaHfied 
voters  of  the  county  voting  on  the  proposition  at  the  general 
election." 

The  other  constitutions  that  have  required  the  use  of  the 


§§  265, 266]  Local  Taxation  345 

referendum  in  questions  of  removal  or  establishment  of  county 
seats  are:  Ohio,  1851;  Minnesota,  1857;  Kansas,  1859;  Texas, 
1876;  Georgia,  1877;  Louisiana,  1879;  California,  1880;  Idaho, 
South  Dakota,  Washington,  and  Montana,  1889;  Mississippi, 
1890;  Kentucky,  1891;  South  Carolina,  1895,  ^-^d  Oklahoma, 
1907.  It  would  therefore  appear  that  about  half  of  the  states 
have  come  to  employ  this  method  of  determining  such  ques- 
tions ;  and  this  half  comprises  nearly  all  of  the  states  in  which 
demands  for  changes  would  probably  be  made  because  of  the 
development  of  the  coimtry. 

265.   Township  Organization 

The  optional  provision  of  the  constitution  of  Illinois,  adopted 
in  1848,  that  "the  general  assembly  shall  pro\dde,  by  general 
law,  for  a  township  organization  under  which  any  county  may 
organize  whenever  a  majority  of  the  legal  voters  of  such  county 
voting  at  any  general  election  shall  so  determine,"  was  continued 
in  the  constitution  of  1870  of  that  state  and  was  followed  by 
Nebraska  in  1875;  Missouri  in  1875;  Cahfomia  in  1880;  Wash- 
ington in  1889;  and  North  Dakota  in  1889.  But  the  constitu- 
tions of  Illinois  (1870),  Missouri  and  Nebraska  (1875),  and 
North  Dakota  (1889),  further  provided  that  if  any  county  shall 
have  adopted  "township  organization"  the  question  of  con- 
tinuing the  same  may  be  submitted  to  a  vote  of  the  electors  of 
such  county  at  a  general  election;  and  if  a  majority  of  all  votes 
cast  upon  that  question  shall  be  against  township  organization 
it  shall  cease  in  said  county  and  all  the  laws  in  force  in  counties 
not    having    township    organization    shall    immediately    take 

effect  there. 

266.   Local  Taxation 

The  next  subject  of  action  on  the  part  of  the  constitutional 
conventions  in  making  provision  for  the  use  of  the  referendum 
in  matters  of  local  government  was  that  of  local  taxation.  In 
this  Maryland  holds  the  place  of  pioneer.  By  its  constitution 
of  1864  (art.  VIII,  sec.  5)  it  provided  that:  "The  general  assem- 
bly shall  levy  at  each  regular  session  after  the  adoption  of  the 


34^  Local  Popular  Legislation  [§  266 

constitution  an  annual  tax  of  not  less  than  ten  cents  on  each  one 
hundred  dollars  of  taxable  property  throughout  the  state  for 
the  support  of  the  free  public  schools;  .  .  .  Provided,  that  the 
general  assembly  shall  not  levy  any  additional  school  tax  upon 
particular  counties,  unless  such  county  express  by  popular  vote 
its  desire  for  such  tax." 

The  example  of  Maryland  has  been  followed  by  a  number  of 
states.  Those  states  providing  for  the  referendum  on  laws  to 
increase  the  rate  of  taxation  for  school  purposes  are:  Missouri, 
1875 ;  Texas,  1876 ;  and  Florida,  1885 ;  those  making  like  provision 
for  city  purposes  are:  Missouri,  1875;  Louisiana,  1879;  those 
providing  for  referendum  to  authorize  an  increased  tax  rate  in 
counties  are:  Texas,  1868;  Illinois,  1870;  West  Virginia,  1872; 
Nebraska  and  Missouri,  1875;  and  Louisiana,  1879. 

The  provision  adopted  by  Missouri  is  most  interesting,  as  by 
it  the  people  through  the  electorate  have  specifically  defined  the 
rate  which  may  be  imposed  by  the  legislative  and  administrative 
agents  in  all  the  local  departments  of  government;  and  then 
bound  the  electorate  not  to  increase  it  except  for  certain  specified 
purposes  without  amendment  to  the  constitution.  The  counties, 
cities,  and  towns  are  grouped  into  four  classes  based  upon  popu- 
lation, and  for  each  class  a  maximum  rate  is  fixed.  The  school 
districts  are  divided  into  rural  and  urban  districts  and  in  these 
the  maximum  rate  may  be  increased  to  a  higher  specified  rate 
whenever  such  increase  is  approved  by  a  "majority  of  the  voters 
who  are  taxpayers."  The  maximum  rate  of  taxation  may  also 
be  increased  in  counties,  cities,  and  school  districts  for  the 
purpose  of  erecting  public  buildings  provided  the  rate  of  increase 
and  object  "shall  have  been  submitted  to  a  vote  of  the  people, 
and  two-thirds  of  the  qualified  voters  of  such  county,  city,  or 
school  district  .  .  .  shall  vote  therefor." 

The  provisions  adopted  in  other  states  are  less  comprehensive 
and  less  specific'  Those  of  Texas  (1876)  and  Florida  (1885) 
relate  only  to  school  taxes.  The  former  state  provides  that 
the  levy  of  taxes  for  school  purposes  in  cities  and  towns  which 
have  been  erected  into  separate  and  independent  school  districts 


§  266]  Local  Taxation  347 

shall  require  the  approval  of  two-thirds  of  the  taxpaying  voters; 
while  the  latter  state  extends  the  principle  of  popular  approval 
to  all  school  districts  and  requires  the  assent  of  only  a  majority 
of  the  taxpaying  electors.  Other  states  limit  the  participation 
of  the  local  electorate  in  taxation  to  public  improvements  and 
the  erection  of  public  buildings.  Thus  the  Texas  constitution  of 
1868  required:  "A  vote  of  two-thirds  of  the  quaUficd  voters  of 
the  respective  counties  to  assess  and  provide  for  the  collection 
of  a  tax  upon  the  taxable  property,  to  aid  in  the  construction  of 
internal  improvements."  Similarly,  in  1879,  Louisiana  provided 
"That  for  the  purpose  of  erecting  and  constructing  public  build- 
ings, bridges  and  works  of  pubhc  improvement  in  parishes  and 
municipaHties,"  the  rate  of  taxes  may  be  increased;  but  such 
increase  must  first  be  approved  by  a  majority  of  the  property 
taxpayers  voting  upon  the  same. 

The  provisions  of  still  other  states  limit  the  participation  of 
the  voters  to  the  increase  of  county  taxes  above  a  maximum 
rate.  The  Illinois  constitution  of  1870  prescribed  that:  "  County 
authorities  shall  never  assess  taxes,  the  aggregate  of  which  shall 
exceed  seventy-five  cents  per  one  hundred  dollars'  valuation, 
except  for  the  payment  of  indebtedness  existing  at  the  adoption 
of  this  constitution,  unless  authorized  by  a  vote  of  the  people 
of  the  county."  West  Virginia  (1872)  and  Nebraska  (1875) 
adopted  similar  provisions  save  that  the  former  state  permitted 
the  county  authorities  to  exceed  the  maximum  rate  without 
popular  approval,  "for  the  support  of  free  schools,  payment 
of  indebtedness  existing  at  the  adoption  of  this  [1S72]  constitu- 
tion, and  for  the  payment  of  any  indebtedness  with  the  interest 
thereon  created  in  a  succeeding  section." 

Such  are  the  constitutional  provisions  for  the  use  of  the 
referendum  in  school  districts,  counties,  and  cities  when  an  in- 
crease in  the  rate  of  taxation  is  desired.  The  constitution  of 
South  CaroHna  contains  a  unique  provision  that:  "Cities  and 
towns  may  exempt  from  taxation,  by  general  or  special  ordi- 
nance, except  for  school  purposes,  manufactures  established 
within  their  Hmits  for  five  successive  years  from  the  time  of 


348  Local  Popular  Legislation  [§  267 

the  establishment  of  such  manufactures;  Provided,  That  such 
ordinance  shall  be  first  ratified  by  a  majority  of  such  qualified 
electors  of  such  city  or  town  as  shall  vote  at  an  election  held 
for  that  purpose." 

267.  Local  Debt  and  Stock  Subscription 

The  next  subject  of  referendum  in  local  matters  relates  to 
debt  and  stockholding.  The  first  provision  limiting  the  power 
of  the  local  units  to  become  stockholders  appears  in  the  Missouri 
constitution  of  1865  and  reads  as  follows:  "The  General  Assem- 
bly shall  not  authorize  any  county,  city,  or  town  to  become  a 
stockholder  in,  or  loan  its  credit  to,  any  company,  association, 
or  corporation  unless  two-thirds  of  the  qualified  voters  of  such 
county,  city  or  town  .  .  .  shall  assent  thereto."  Two  years 
later  the  constitution  of  Maryland  placed  a  similar  restriction 
upon  the  mayor  and  council  of  the  city  of  Baltimore  by  pro- 
viding that  the  credit  of  the  mayor  and  council  shall  not  "be 
given  or  loaned  to,  or  in  aid  of,  any  individual,  association,  or 
corporation,"  and  further  that  the  mayor  and  council  shall  not 
have  the  power  "to  involve  the  city  ...  in  the  construction 
of  works  of  internal  improvements,"  nor  to  grant  "any  aid 
thereto  which  shall  involve  the  faith  and  credit  of  the  city, 
nor  make  any  appropriation  therefor,  unless  such  debt  or  credit 
be  authorized  by  an  act  of  the  General  Assembly  of  Maryland, 
and  by  an  ordinance  of  the  mayor  and  city  council  of  Baltimore, 
submitted  to  the  legal  voters  of  the  city  .  .  .  and  approved  by 
a  majority  of  the  votes  cast."  In  1875  Nebraska  adopted  a 
constitutional  provision  prohibiting  "donations  to  any  railroad 
or  other  work  of  internal  improvement,"  unless  a  proposition 
so  to  do  shall  first  be  approved  by  the  voters,  and  applied  the 
same  to  every  local  unit  —  city,  county,  town,  precinct,  and 
municipality.  Such  donations  with  popular  approval  were 
limited  to  ten  per  cent  of  the  assessed  valuation,  except  that 
"any  city  or  county  may,  by  a  two-thirds  vote,  increase  such 
indebtedness  five  per  cent  in  addition  to  such  ten  per 
cent " 


§  267 1  Debt  and  Stocks  349 

The  right  of  the  voters  to  participate  in  the  creation  of  debts 
was  first  recognized  by  Arkansas,  Mississippi,  and  North  Caro- 
lina in  1868;  and  the  lead  of  these  states  was  followed  by  Ten- 
nessee in  1870,  West  Virginia  in  1872,  Missouri  in  1875,  and 
South  Carolina  in  1895.  The  Missouri  provision  reads  as 
follows:  "No  county,  city,  school  district,  or  municipal  corpora- 
tion, except  in  cases  where  such  corporations  have  already 
authorized  their  bonds  to  be  issued,  shall  hereafter  be  allowed 
to  become  indebted,  ...  to  an  amount,  including  existing 
indebtedness,  in  the  aggregate  exceeding  five  per  cent  on  the 
value  of  the  taxable  property  therein  .  .  .;  nor  without,  at  the 
same  time,  providing  for  the  collection  of  a  direct  annual  tax 
sufiicient  to  pay,  annually,  the  interest  on  such  debt  and  the 
principal  thereof  within  not  exceeding  thirty-four  years:  Pro- 
vided, That  no  debt  shall  be  contracted  under  this  section, 
unless  all  questions  connected  with  the  same  shall  have  been 
first  submitted  to  a  vote  of  the  people,  and  have  received  three- 
fifths  of  all  the  votes  cast  for  and  against  the  same." 

The  constitutional  provisions  of  a  number  of  the  states 
providing  for  the  referendum  on  indebtedness  are  less  drastic. 
They  permit  the  creation  of  a  debt  to  a  limited  amount  without 
popular  approval;  while  above  the  specified  percentage  the 
approval  of  the  voters  must  be  obtained.  Thus  the  Penn- 
sylvania constitution  of  1873  provides  that  the  total  indebted- 
ness of  any  county,  city,  borough,  township,  school  district, 
etc.,  shall  never  exceed  seven  per  cent  upon  the  assessed  valua- 
tion of  taxable  property  and  that  the  indebtedness  shall  never 
exceed  two  per  cent  "without  the  assent  of  the  electors  thereof 
at  a  public  election."  In  a  similar  way  the  constitution  of 
Washington  (1889)  fixes  the  maximum  rate,  without  popular 
approval,  at  one  and  one-half  per  cent,  while  an  increased  in- 
debtedness not  exceeding  five  per  cent  must  receive  the  approval 
of  three-fifths  of  the  voters  of  the  local  unit  affected.  However, 
a  city  or  town  may  become  mdebted,  with  such  assent,  to  a 
larger  amount  not  exceeding  five  per  cent  additional  "for  supply- 
ing such  city  with  water,  artificial  light,  and  sewers  when  the 


350  Local  Popular  Legislation  [§  267 

works  for  supplying  water,  light,  and  sewers  shall  be  occupied 
and  controlled  by  the  municipality." 

The  Colorado  constitution  of  1S76  forbids  a  county  from 
contracting  any  debt  "by  loan"  in  any  form  except  for  the 
purpose  of  erecting  necessary  buildings,  and  making  or  repairing 
pubHc  roads  and  bridges.  The  aggregate  indebtedness  for 
any  one  year  is  then  specified,  but  the  total  indebtedness  may 
not  exceed  twice  the  yearly  indebtedness  unless  a  proposition 
for  exceeding  this  limit  is  approved  by  a  majority  of  the  tax- 
paying  electors. 

The  same  constitution  provides  that  the  indebtedness  of 
cities  by  loans  shall  be  by  ordinance  with  the  approval  of  the 
taxpaying  voters  by  majority  vote  of  those  voting  thereon. 
It  further  provides  that  such  ordinance  thus  approved  shall 
be  irrepealable  until  "the  indebtedness  therein  provided  shall 
have  been  fully  paid  or  discharged."  Similarly  all  school 
debts  by  loan  contracted  for  the  purpose  of  erecting  and  furnish- 
ing school  buildings,  etc.,  must  be  approved  by  a  majority  of 
the  taxpaying  voters  voting  thereon. 

The  Idaho  constitutional  provision  gives  the  voters  a  still 
greater  hold  over  indebtedness.  No  county,  city,  town,  town- 
ship, board  of  education,  etc.,  may  create  a  debt  exceeding  for 
any  year  the  income  provided  for  such  a  year  without  the 
assent  of  two-thirds  of  the  qualified  electors,  "nor  unless,  before 
or  at  the  time  of  incurring  such  indebtedness,  provision  shall  be 
made  for  the  collection  of  an  annual  tax  sufiicient  to  pay  interest 
on  such  indebtedness  as  it  falls  due,  and  also  to  create  a  sinking 
fund."  Similar  provision  was  made  in  California  in  1892  by 
amendment. 

In  1895  South  Carolina,  besides  following  the  example  of 
West  Virginia,  with  slight  changes,  also  made  provision  that: 
"Cities  and  towns  m.ay  acquire  by  construction  or  purchase, 
and  may  operate  water  works,  systems,  and  plants  for  furnishing 
lights,  and  may  furnish  water  and  lights  to  individuals,  firms  and 
private  corporations  for  reasonable  compensation;  Provided, 
That  no  such  construction  or  purchase  shall  be  made  except 


I 


§268]  Other  Subjects  351 

upon  a  majority  vote  of  the  electors  in  said  cities  or  towns  who 

are  quahfied  to  vote  on  the  bonded  indebtedness  of  said  cities 

or  towns." 

268.  Various  Other  Subjects 

Other  questions  have  been  made  subjects  for  referenda! 
provisions  in  the  constitution,  such  as  changing  the  lines  of 
judicial  districts,  deciding  whether  judges  shall  be  elected  or 
appointed,  whether  proportional  representation  shall  be  adopted, 
whether  new  courts  shall  be  formed,  question  as  to  number  of 
aldermen  and  justices  of  the  peace  to  be  chosen  in  a  district 
or  ward,  etc.  Thus,  in  1868,  the  Texas  constitution  provided 
as  follows:  "The  State  shall  be  divided  into  convenient  judicial 
districts,  for  each  of  which  one  judge  shall  be  appointed  by 
the  governor,  by  and  with  the  advice  and  consent  of  the  senate, 
for  a  term  of  eight  years  .  .  .  Provided,  That  at  the  first  general 
election  after  the  4th  of  July,  1876,  the  question  shall  be  put 
to  the  people  whether  the  mode  of  election  of  judges  of  the 
Supreme  and  District  courts  shall  now  be  returned  to." 

And  in  1869  New  York,  following  the  example  of  Texas, 
made  provision  that:  "The  legislature  shall  provide  for  sub- 
mitting to  the  electors  of  the  State,  at  the  general  election  of 
the  year  eighteen  hundred  and  seventy-three,  two  questions 
to  be  voted  upon  on  separate  ballots,  as  follows:  First,  'Shall 
the  offices  of  chief  judge  and  associate  judge  of  the  court  of 
appeals,  and  of  justice  of  the  supreme  court,  be  hereafter  filled 
by  appointment? '  If  a  majority  of  the  votes  upon  the  question 
shall  be  in  the  affirmative,  the  said  ofiicers  shall  not  thereafter 
be  elected,  but  as  vacancies  occur  they  shall  be  filled  by  appoint- 
ment by  the  governor,  by  and  with  the  advice  of  the  senate; 
or  if  the  senate  be  not  in  session,  by  the  governor;  but  in  such 
case  he  shall  nominate  to  the  senate  when  next  convened,  and 
such  appointment  by  the  governor  alone  shall  expire  at  the  end 
of  session.  Second,  *  Shall  the  offices  of  judges  mentioned  in 
sections  twelve  and  fifteen  of  article  six  of  the  Constitution 
(judges  of  the  superior  court  of  New  York  City,  the  court  of 
common  pleas  of  New  York  City,  the  superior  court  of  Buffalo, 


352  Local  Popular  Legislation  [§  269 

the  city  court  of  Brooklyn,  and  the  county  courts  throughout 
the  state)  be  hereafter  filled  by  appointment?'  If  a  majority 
of  the  votes  upon  the  question  shall  be  in  the  affirmative,  the 
said  officers  shall  not  thereafter  be  elective,  but  as  vacancies 
occur  they  shall  be  filled  in  the  manner  in  this  section  above 
provided." 

In  1872  West  Virginia  made  provision  for  the  use  of  the  refer- 
endum in  the  reform  and  modification  of  county  courts  already 
established  and  for  the  establishment  of  new  tribunals,  as 
follows:  "The  legislature  shall  upon  the  application  of  any 
county,  reform,  modify,  or  alter  the  county  court  established 
by  this  constitution  in  such  county,  and  in  lieu  thereof,  with  the 
assent  of  a  majority  of  the  voters  of  said  county  voting  at  any 
election  held  for  that  purpose,  create  another  court  or  other 
tribunals,  as  well  for  judicial  as  for  police  and  fiscal  purposes, 
either  separate  or  combined,  which  shall  conform  to  the  wishes 
of  the  county  making  the  application,  but  with  the  same  powers 
and  jurisdiction  herein  conferred  upon  the  county  court,  and 
with  compensation  to  be  made  from  the  county  treasury." 

Pennsylvania,  in  its  constitution  of  1873,  adopted  a  provision 
for  referendum  as  to  the  number  of  justices  of  the  peace  and 
aldermen  to  be  elected  in  the  several  wards,  districts,  etc.,  the 
provision  being:  "No  township,  ward,  district,  or  borough  shall 
elect  more  than  two  justices  of  the  peace  or  aldermen  without 
the  consent  of  a  majority  of  the  qualified  electors  within  such 
township,  ward,  or  borough." 

269.  Subjects  of  Local  Initiative 

For  a  long  period  of  time  and  in  many  directions  the  voters 
have  been  given  the  right  to  initiate  local  legislation.  To 
quote  Dr.  Oberholtzer,  "The  initiative  occurs  in  connection 
with  propositions  to  incorporate  cities  and  villages,  to  advance 
or  reduce  their  grade,  to  organise  levee  districts  and  irrigation 
districts,  to  loan  the  public  credit  and  issue  bonds,  to  levy  taxes 
for  special  purposes,  to  change  city  and  county  boundary  lines, 
to  remove  county  seats,  to  make  the  enclosure  of  various  species 


I 


§270]  Extension  to  Localities  353 

of  live  stock  obligatory,  to  prohibit  the  manufacture  or  trafiEc 
in  alcoholic  Uquors,  to  sell  public  lands,  and  to  enact  a  great 
variety  of  by-laws  and  enforce  many  different  regulations  having 
to  do  with  local  management."  ^ 

In  Florida,  Georgia,  Mississippi,  Missouri,  Montana,  North 
Carolina,  Texas,  and  Virginia  a  certain  fraction  of  the  voters  of 
the  county  ranging  from  one-tenth  to  one  third  may  petition  for 
an  election  upon  the  question  of  prohibition  of  the  sale  of 
liquors,  while  in  Connecticut,  Minnesota,  Wisconsin,  and  New 
Jersey,  a  similar  fraction  of  the  voters  of  each  township  and  in 
some  cases  the  voters  of  cities  may  petition  for  an  election  upon 
the  same  question.^  In  nine  states  a  specified  percentage  of 
voters  may  petition  for  an  election  calling  for  a  change  in  the 
location  of  the  county  seat.^  In  six  states  a  vote  upon  the 
question  of  live  stock  running  at  large  may  be  called  for  through 
the  initiation  of  the  electors.'*  The  question  of  establishing 
county  or  township  high  schools  must  in  six  states  be  decided 
by  an  election  requested  by  the  voters.^  A  great  variety  of  other 
subjects,  ranging  from  the  destruction  of  wolves,  wildcats, 
coyotes,  and  mountain  lions  to  the  introduction  of  civil  service, 
might  be  cited  as  evidences  of  the  exercise  of  the  local  initiative. 

270.  Extension  of  Initiative  and  Referendiun  to  Localities 

As  in  the  case  of  referendum  provisions  relating  to  general 
laws,  it  is  impossible  for  any  constitutional  convention  to 
foresee  the  future  needs  of  localities.  It  is  therefore  not  sur- 
prising that  in  a  number  of  states  the  right  of  initiative  and 
referendum  has  been  extended  to  all  local  legislation  in  one  or 
other  of  three  ways:  (i)  by  constitutional  amendment  extending 
the  right  of  initiative  and  referendum  to  all  cities;  (2)  by  general 
municipal  laws  providing  for  the  initiative  and  referendum,  the 
adoption  of  such  laws  being  subject  to  the  approval  of  the  muni- 

^  Obcrholtzcr,  E.  P.,  The  Rcfcretidum  in  America  (1911),  p.  371. 
''Oberholtzer,  E.  P.,  The  Refere^idum  in  America  (1911),  pp.  371,  372. 
' Oberholtzer,  E.  P.,  The  Referendum  in  America  (1911),  P-  373. 
■^ Oberholtzer,  E.  P.,  The  Referendum  in  America  (1911),  pp.  373,  374. 
^ Oberholtzer,  E.  P.,  The  Referendum  in  America  (1911),  p.  374. 
24 


354  Local  Popular  Legislation  [§271 

cipalities  themselves,  (3)  by  the  action  of  the  municipalities 
themselves  in  states  which  grant  cities  the  right  to  frame  their 
own  charters. 

In  South  Dakota  the  initiative  and  referendum  amendment 
of  1898  applies  to  municipal  legislation  as  well  as  to  state 
legislation,  and  so  does  the  initiative  and  referendum  provision 
of  the  Oklahoma  constitution  of  1907.  In  1906  a  measure  was 
adopted  through  the  initiative  providing  for  the  amendment 
of  the  constitution  of  Oregon  extending  the  initiative  and 
referendum  to  all  local,  special,  and  municipal  laws.^  The 
Maine  amendment  of  1908,  which  extends  these  same  rights  to 
all  state  legislation,  provides  that  any  municipahty  may  adopt 
the  initiative  and  referendum  by  an  act  of  the  City  Council 
with  the  approval  of  the  voters.^  The  California  amendment 
adopted  m  1911  reserves  the  right  of  the  use  of  the  initiative  and 
referendum  to  all  local  units  under  "such  procedure  as  may  be 
provided  by  law,"  and  until  the  legislature  takes  action  the 
local  legislative  body  may  prescribe  the  procedure. 

271.  Effect  of  Commission  Government  on  Initiative  and 
Referendum 

The  second  method  of  extending  the  initiative  and  referendum 
to  municipalities  is  closely  related  to  the  extension  of  the  com- 
mission form  of  city  government.  At  the  present  time  one- 
half  of  the  states  have  general  laws  under  which  cities  may 
adopt  the  commission  form  of  government.  Among  these  are 
Oklahoma,  Kansas,  Colorado,  Idaho,  California,  Iowa,  Mis- 
souri, West  Virginia,  Louisiana,  Tennessee,  Wisconsin,  Minne- 
sota, North  Dakota,  South  Dakota,  North  Carolma,  Alabama, 
Michigan,  Washington,  Montana,  New  Jersey,  and  Massachu- 
setts. In  other  states  similar  bills  are  pending.  The  laws  of 
many  of  these  states  contain  provisions  for  the  initiative  and 
referendum.  A  partial  reason  for  this  is  the  fear  that  the 
limited  nimiber  of  commissioners,  who  exercise  executive,  legis- 

^Laws,  1907,  ch.  39,  sec.  182. 

2  Acts  and  Resolves,  1908,  ch.  121,  p.  476. 


§  272]  Under  Home  Rule  355 

lative,  and  judicial  powers,  might  become  arbitrary  rulers  in 
the  absence  of  such  provisions.  In  December,  191 2,  one  hun- 
dred and  ninety-four  cities  had  adopted  the  commission  form 
of  government.^  This  of  course  includes  states  in  which  home 
rule  prevails  and  a  few  states  where  charters  are  granted  by 
special  act.^ 

272.  Effect  of  Home  Rule  on  Initiative  and  Referendum 
The  third  method  of  extending  the  initiative  and  referendum 
is  by  action  of  the  cities  themselves  in  home  rule  states:  Cali- 
fornia, Missouri,  Minnesota,  Washington,  Colorado,  Oklahoma, 
Oregon,  and  Michigan.  Missouri  grants  the  right  to  frame 
their  own  charters  to  all  cities  with  a  population  of  more  than 
100,000;  California  grants  the  same  privilege  to  cities  with  a 
population  of  more  than  3,500;  Washington  to  cities  of  20,000 
and  over;  Minnesota  to  all  cities,  without  any  restriction; 
Colorado  to  all  cities  of  2000  or  more;  Oregon  and  Oklahoma  to 
all  cities,  while  the  new  constitution  of  Michigan  grants  the 
cities  a  considerable  freedom  in  framing  their  own  charters.' 
Some  of  these  states  have  general  laws  prescribing  the  com- 
mission form  of  government  with  the  initiative  and  referendum 
as  a  part;  but  popular  legislation  in  these  states  is  by  no  means 
limited  to  cities  of  this  kind.  For  instance,  in  California, 
eleven  cities  which  do  not  have  the  commission  form  of  govern- 
ment have  adopted  the  initiative  and  referendum.  Other  cities 
having  adopted  popular  legislation  in  the  home  rule  states  are 
Kansas  City,  Missouri;  Everett,  Spokane,  and  Seattle,  Washing- 
ton; and  Denver,  Colorado.* 

*  Equity,  XV,  no.  i. 

*  Bradford,  Ernest  S.,  Commission  Government  in  the  United  States,  pp. 
131-38. 

*  Deming,  H.  E.,  The  Government  of  American  Cities,  pp.  92-97. 
^Deming,  H.  E.,  The  Government  of  American  Cities,  pp.  105-107. 


Part  V 

Provisions  for  Making  Public  Officers 
Responsible  and  Responsive 


CHAPTER  XXVI 
ELECTION  OF  LEGISLATORS 

273.  References 

Bibliography:  List  of  References  on  the  Popular  Election  of  Senators 
(Library  of  Congress,  1904);  G.  H.  Haynes,  The  Election  of  Senators  (1906), 
Appendix  iii;  Brookings  and  Ringwalt,  Briefs  for  Debate  (1896),  32-34;  R.  C. 
Ringwalt,  Briefs  on  Public  Questions  (1906),  67-70. 

Principles  Governing  the  Selection  of  Officers:  C.  E.  Merriam, 
Primary  Elections  (1908),  168-172;  C.  A.  Beard,  American  Government 
and  Politics  (1910),  ch.  xxiii;  Beard  and  Schultz,  Documents  on  Initiative, 
Referendum  and  Recall  (1912),  68-69;  R.  S.  Childs,  Short  Ballot  Principles 
(1911);  C.  E.  Hughes,  Conditions  of  Progress  in  Democratic  Government 
(1910),  ch.  ii;  E.  H.  Deming,  The  Government  of  American  Cities  (1909),  55; 
P.  L.  Allen,  Ballot  Laws  and  their  Workings  {Pol.  Sci.  Quart.,  1906,  XXI). 

Election  of  U.  S.  Senators:  G.  H.  Haynes,  The  Election  of  Senators 
(1906);  J.  Bryce,  American  Commofiwealth  (rev.  ed.,  1910),  I,  chs.  x,  xi,  xii; 
J.  W.  Burgess,  Political  Science  and  Constitutional  Law  (1890),  II,  41-46; 
J.  W.  Burgess,  The  Election  of  U.  S.  Senators  by  Popidar  Vote  {Pol.  Sci. 
Quart.,  XVII,  650);  E.  C.  Meyer,  Nominating  Systems  (1902),  448-451; 
J.  Haynes,  Popidar  Election  of  U.  S.  Senators  (Johns  Hopkins  University, 
Studies,  nth  Series,  Nov.  and  Dec);  S.  E.  Moffet,  75  the  Senate  unfairly 
Constituted?  (Ibid.,  X,  248);  W.  Wilson,  Congressional  Government  {!?>?>$), 
224-228;  The  Federalist,  ^0%.  27,42;  MSidison,  Journal  of  the  Constitutional 
Convention  (Scott  ed.),  78,  80,  82,  125,  130. 

Election  of  Municipal  Legislators:  J.  A.  Fairlie,  Municipal  Ad- 
ministration (1901),  ch.  v;  F.  J.  Goodnow,  Municipal  Government  (1908), 
chs.  ix,  x;  A.  S.  Bolles,  Pennsylvania  Province  and  State  (1899),  II,  271; 
W.  Ash,  Greater  New  York  City  Charter  (1906),  1166,  1169,  1187. 

274.   Distinction  Between  Legislative  and  Administrative  Officers 

BouviER  defines  election  as  "the  selection  of  one  man  from 

amongst  more  to  discharge  certain  duties  in  a  state,  corporation, 

or  society."^    The  term  "election"  as  used  in  constitutions, 

1  Bouvier,  Law  Dictionary  (Phila.,  1894),  vol.  i,  p.  581. 


§  275 ]  Colonial  Legislatures  357 

laws,  and  political  discussions  does  not  convey  a  definite  meaning 
as  to  method.  It  is  applied  to  selections  or  appointments  made 
by  the  legislative  bodies  as  well  as  to  selections  made  by  the 
electorate;  but  in  the  discussion  which  follows,  the  term 
"election"  will  be  understood  to  mean  a  selection  of  officers  of 
government  by  the  electorate. 

As  has  been  already  pointed  out,  the  framers  of  state  con- 
stitutions and  municipal  charters  have  had  no  recognized 
principle  for  guidance  in  determining  whether  officers  should 
be  elected  or  appointed.  The  result  has  been  that  ballots  have 
been  overburdened  and  the  voters  confused  with  the  considera- 
tion of  candidates  for  positions  which  should  be  filled  by  appoint- 
ment. "The  true  principle,"  says  Professor  Merriam,^  "is  that 
the  people  should  choose  all  officers  concerned  with  the  formula- 
tion of  public  policies.  They  need  not  choose  men  engaged  in 
carrying  out  of  policies.  Policy  framing  or  legislation  is  a 
matter  upon  which  there  may  be  differences  of  opinion,  and 
men  intrusted  with  the  work  of  drawing  up  such  plans  must  be 
elected  by  and  be  immediately  responsible  to  the  people.  Re- 
garding the  execution  of  policies  once  enacted  into  law,  there  is 
less  room  for  difference  of  opinion.  The  making  of  law  is 
partisan,  but  the  enforcement  of  the  law  should  be  non-partisan." 
The  obvious  conclusion  derived  from  the  principle  suggested 
is  that  the  general  legislative  officers,  including  the  officer 
exercising  the  veto  power,  should  be  chosen  by  citizen  electors; 
that  purely  administrative  officers  should  be  appointed  by  an 
elected  officer  or  his  subordinates  subject  to  proper  civil  service 
restrictions.  To  what  extent  this  principle  has  been  recognized 
is  shown  below. 

275.  Colonial  Legislatures  Directly  Elected 

At  the  present  time  all  legislative  agents,  federal,  state,  and 
municipal,  save  United  States  senators,  arc  chosen  directly 

1  Merriam,  C.  E.,  Primary  Elections,  p.  171;  Allen,  Phillip  L.,  "Ballot 
Laws  and  their  Workings,"  {Pol.  Set.  Quart.,  vol.  xxi,  p.  38);  Deming,  H.  E., 
The  Government  of  American  Cities,  p.  55. 


358  Election  of  Legislators       [§§  276, 277 

by  voters.  This  provision  for  popular  control  over  legislators 
originated  early  in  our  colonial  period.  Even  in  colonies  whose 
charters  provided  for  such  procedure,  legislation  by  popular 
assembly  soon  became  unwieldy  and  impractical.  A  representa- 
tive assembly  was  introduced  in  Virginia  in  1619  by  act  of  the 
London  Company;  by  act  of  the  General  Court  of  Massachusetts 
Bay  it  was  introduced  there  in  1636;  the  Fundamental  Laws  of 
Connecticut  provided  for  an  elected  legislature  in  1639;  the 
same  expedient  was  adopted  in  Rhode  Island  and  Plymouth; 
all  these  were  chosen  by  citizen  electors.  In  the  royal  and 
proprietary  charters  of  other  colonies  the  right  of  the  freeman 
to  participate  in  legislation  was  usually  recognized,  but  there, 
too,  the  representative  assembly  composed  of  delegates  chosen 
by  the  freemen  of  the  towns  or  counties  was  established  after 
the  colonies  had  outgrown  the  mass  meeting. 


276.  Colonial  Choice  of  Councillors 

Originally,  most  of  the  colonies  had  a  Council  which  exercised 
executive  and  judicial  powers  as  well  as  legislative  powers;  in 
practically  all  of  the  colonies  this  body  later  developed  into  an 
upper  chamber  or  legislative  assembly.  In  the  charter  colonies 
of  New  England  the  upper  chamber  or  Council  was  chosen  by 
the  freemen,  save  that  in  Massachusetts  after  the  union  of 
Plymouth  and  Massachusetts  Bay  in  1691  and  the  abrogation 
of  their  liberal  charters,  the  Council  or  Assistants  were  chosen 
by  the  Assembly.  In  all  of  the  other  colonies,  however,  the 
Council  was  appointed  by  the  royal  governor  or  by  the  proprietor 
or  his  deputy. 

277.  Indirect  Election  of  Federal  Senators 

Passing  to  the  statehood  period,  all  of  the  original  states  save 
Pennsylvania  and  Georgia  adopted  the  bi-cameral  system  and 
made  both  houses  elective  with  but  a  single  exception :  Maryland 
established  an  indirect  system  of  choosing  the  upper  chamber, 
which  foreshadowed  the  federal  electoral  college  scheme  later 


§277]  Election  of  Senators  359 

adopted  for  the  election  of  President.  The  Maryland  senate 
was  chosen  by  a  board  of  senatorial  electors  who  in  turn  were 
chosen  by  the  voters  in  their  respective  election  districts  every 
fifth  year.  It  was  the  constitutional  duty  of  these  senatorial 
electors  to  choose  "men  of  the  most  wisdom,  experience,  and 
virtue"  to  fill  the  more  dignified  branch  of  the  legislature.^ 
This  system  of  mdirect  election  of  state  senators,  however,  was 
abolished  in  1837;  henceforth  both  houses  of  the  state  legislature 
were  chosen  directly  by  the  voters.  In  view  of  the  present 
interest  in  the  subject  the  most  notable  exception  to  the  choice 
of  legislative  agents  by  the  voters  direct  is  the  United  States 
Senate;  the  reason  assigned  by  the  framers  of  the  federal  con- 
stitution for  the  establishment  of  the  indirect  method,  and  the 
reasons  urged  in  the  recent  agitation  for  changing  the  indirect 
system  to  a  direct  election  of  senators  by  the  voters,  deserve 
consideration. 

In  the  Convention  of  1787  the  election  of  United  States 
senators  by  the  direct  vote  of  the  people  received  very  little 
support.  Most  of  the  delegates  favored  a  method  which,  to 
quote  Madison,  would  result  in  "refining  the  popular  appoint- 
ment by  successive  filtrations."  ^  The  fact  is  that  the  experience 
of  most  of  the  states  with  popular  government  during  the 
period  of  Confederation,  even  in  the  legislative  branch,  caused 
a  majority  of  those  who  met  in  the  federal  Constitutional  Con- 
vention to  view  democracy  with  suspicion.  Roger  Sherman, 
coming  from  a  state  (Connecticut)  which  was  heir  to  an  elective 
legislature  of  two  branches  established  by  the  fundamental 
laws  of  1639,  expressed  this  attitude  in  the  following  manner: 
"The  people  immediately  should  have  as  little  to  do  as  may  be 
about  government."  ^  With  views  like  this  prevailing,  the 
earnest  advocacy  of  popular  election  by  its  able  exponent, 
James  Wilson,  fell  upon  unwilling  ears,  and  when  the  question 
came  to  a  final  vote,  only  two  states  voted   against  election 

^  Schouler,  James,  Constitutional  Studies,  p.  54. 

*  Madison,  Journal  of  Constitutional  Convention  (E.  H.  Scott  ed.),  P-  80. 

*  Madison,  Journal  of  Constitutional  Convention  (E.  H.  Scott  ed.),  p.  78. 


360  Election  of  Legislators  [§  278 

by  the  state  legislature.^  However,  the  prevailing  distrust  of 
democracy  was  not  the  only  reason  urged  in  favor  of  the 
indirect  method.  It  was  further  held  that  election  by  the  state 
legislature  would  estabUsh  a  closer  relation  between  the  nation 
and  the  state  government  through:  (i)  the  representation  of 
the  collective  will  of  the  state  in  the  Senate;  (2)  the  creation 
of  a  direct  interest  of  the  state  in  the  national  government. 
Both  of  these  reasons  have  been  proved  by  experience  to  be 
ill-founded. 

278.  Deadlocks  in  Electing  Federal  Senators 

The  constitution  of  the  United  States  grants  to  the  legisla- 
ture the  power  to  determine  the  manner  in  which  the  election 
by  the  state  legislature  shall  be  conducted  until  Congress  shall 
by  law  prescribe  such  regulations';  and  this  Congress  refused 
to  do  until  1866.  A  deadlock  due  to  failure  of  both  houses  to 
agree  left  the  state  of  New  York  unrepresented  in  the  Senate  in 
the  j&rst  session  of  Congress  (1789)  for  two  months;  it  left  the 
state  of  Pennsylvania  represented  by  only  one  senator  from  1791 
to  1793."  This  same  method  resulted  in  protracted  struggles 
in  Massachusetts  and  New  Hampshire  in  their  first  election  of 
United  States  senator.  In  all  of  these  states  when  a  joint 
ballot  was  proposed,  the  senate,  the  smaller  body,  held  out 
against  it.  The  reason  for  this,  apart  from  the  claim  that  a 
joint  ballot  destroyed  the  equality  of  the  two  houses,  was  that 
the  senate  being  the  conservative  body  would  constitute  a  stUl 
further  check  upon  the  election  of  radicals  to  the  federal  Sen- 
ate. The  federal  act  of  1866  settled  the  practice;  it  provided 
that  on  the  day  following  the  day  in  which  a  separate  vote  of 
each  house  for  United  States  senator  was  taken,  the  legisla- 
ture of  the  state  shall  proceed  to  vote  by  joint  ballot  for  the 
senator,  unless  the  journal  of  each  house  shall  show  that  each 

1  Madison,  Journal  of  Constitutional  Convention  (E.  H.  Scott  ed.),  pp.  82, 
125,  130. 

2  Journal  of  the  House  of  Representatives  of  Pennsylvania,  September, 
1791;  March,  1792;  December  13,  1790;  Journal  of  the  Senate  of  Penn- 
sylvania, February  19,  1793. 


§278]  Deadlocks  361 

house  elected  by  separate  ballot  the  same  person;  and  that  a 
vote  shall  be  taken  on  each  legislative  day  thereafter  until  a 
senator  is  chosen  by  a  joint  majority  vote.  The  aim  of  the 
provision  was  to  do  away  with  the  deadlocks  resulting  from  the 
concurrent  method  of  electing  United  States  senators,  a  method 
then  prevailing  in  several  states. 

The  change  to  the  joint  ballot  method  provided  by  the 
federal  law  of  1866,  however,  by  no  means  did  away 
with  deadlocks;  on  the  contrary,  these  deadlocks  appeared 
to  become  more  numerous,  due  to  inability  of  the  legis- 
lature in  joint  session  to  marshal  a  majority  vote  in  favor 
of  any  one  candidate.  Professor  Haynes  shows  that  from 
1893  to  1905,  a  period  covering  seven  Congresses,  "only 
one  has  not  had  its  Senate  cut  down  by  vacancies  due  to 
deadlocks  m  state  legislatures.  In  three  Congresses  there  has 
been  one  vacancy;  in  one,  two;  in  one,  three;  and  in  one, 
four."  1 

The  evil  of  these  deadlocks  is  more  far-reaching  than  unequal 
representation  in  the  Senate.  It  results  also  in  wasting  the 
time  of  the  state  legislature;  in  bribery  as  a  means  to  the  suc- 
cess of  leading  candidates  who  endeavor  to  break  the  deadlocks; 
in  the  confusion  of  issues  at  the  election  of  members  of  the 
legislature  whenever  the  ensuing  legislature  is  called  upon  to 
elect  a  senator.  Several  half-hearted  changes  have  been  sug- 
gested in  the  law  of  1866,  to  remedy  this  evil,  by  United  States 
senators  who  are  opposed  to  popular  election  as  a  cure-all. 
The  late  Senator  Hoar  suggested  that  after  a  specified  number 
of  votes  had  been  taken  in  the  legislature  without  effecting  a 
choice,  a  plurality  vote  should  constitute  an  election.  Senator 
Root  suggested  the  same  change  in  a  somewhat  altered  form. 
Accepting  this  latest  proposal,  a  plurality  vote  would  be  deemed 
sufl5cient  for  election  in  case  a  majority  choice  is  not  realized 
by  March  fourth,  when  the  vacancy  begins.  Neither  of  these 
suggestions  has  been  taken  seriously.  The  evils  enumerated 
above  therefore  remain,  and  together  with  the  positive  advan- 
1  Haynes,  G.  H.,  The  Election  oj  United  States  Senators,  pp.  62-63. 


362  Election  of  Legislators  [§  279 

tages  of  popular  election,  they  have  given  the  advocates  of  direct 
election  a  strong  case. 

279.  Movement  for  Direct  Choice  of  Senators 

The  movement  in  favor  of  the  direct  election  of  United  States 
senators  by  amendment  of  the  constitution  is  based  upon  two 
considerations:  (i)  the  unforeseen  difficulties  which  have  arisen 
in  election  by  state  legislatures;  (2)  the  violation  of  the  funda- 
mental principle  that  all  legislative  or  policy  determining  agents 
should  be  elected  by  the  people. 

Amendments  of  the  constitutional  provision  may  be  pro- 
posed in  two  ways:  (i)  by  a  two-thirds  vote  of  both  houses 
of  Congress;  (2)  by  a  constitutional  convention  called  by 
Congress  upon  the  appHcation  of  the  legislatures  of  two- 
thirds  of  the  states.  Thus  far  every  amendment  added  to 
the  constitution  has  been  proposed  by  the  former  method. 
Any  proposal  for  the  popular  election  of  senators  by  this 
method,  however,  is  unique  in  that  it  calls  upon  the  senators 
to  declare  their  opposition  to  the  very  method  which  sent 
them  to  the  Senate.  Between  1893  and  1902  the  House 
five  times  passed  resolutions  by  two-thirds  vote  favoring  pop- 
ular election;  ^  and  in  each  instance  the  Senate  has  refused  to 
concur. 

In  the  meantime  a  majority  of  the  state  legislatures  have 
adopted  resolutions  calling  upon  Congress  to  convene  a  National 
Constitutional  Convention  to  propose  this  amendment;  and  at 
the  same  time,  as  we  shall  see  in  a  later  section,  many  states 
enacted  laws  providing  for  an  expression  of  the  voter  at  the 
polls  prior  to  the  selection  of  a  senator  by  the  legislature  as  to 
their  choice  for  senator.  Finally  the  Senate  has  yielded,  and 
this  year,  19 13,  a  proposed  amendment  for  the  direct  election 
of  United  States  senators  was  speedily  ratified  by  the  states. 
A  provision  for  federal  government  supervision  over  senatorial 
elections,  added  by  the  Senate  as  an  amendment  to  the  House 
resolution,  was  twice  rejected  chiefly  through  the  opposition  of 
^  Haynes,  G.  H.,  The  Election  of  United  States  Senators,  p.  104. 


§  28o]  State  Laws  363 

the  representatives  from  the   South,  but  was  accepted  May 
13,  1912. 

The  reasons  urged  against  the  plan  were  ably  stated  by 
Senators  Hoar  and  Chandler:  (i)  popular  election  would  mean 
the  choice  of  senators  by  party  conventions  whose  practices 
are  more  to  be  condemned  than  those  of  the  state  legis- 
lature; (2)  it  would  impair  the  conservatism  of  the  Senate; 
(3)  it  would  increase  the  number  of  disputed  elections  and 
the  difficulty  of  their  just  settlement;  (4)  it  would  increase 
the  influence  of  mere  numbers  and  city  populations;  (5) 
it  would  threaten  the  equal  suffrage  of  the  states  in  the 
Senate.  ^ 

In  answer  to  these  objections  it  is  urged:  (i)  party  conven- 
tions are  being  slowly  but  surely  superseded  by  nominations 
by  the  direct  vote  of  the  party  electors;  (2)  the  conservatism 
of  the  Senate  is  a  matter  of  dispute;  (3)  the  evil  of  deadlocks 
more  than  offsets  the  possible  evil  of  disputed  elections;  (4) 
experience  with  direct  nominations  of  state  officers  is  in  direct 
opposition  to  the  claim  that  city  populations  will  combine;  - 
(5)  the  small  states  will  never  yield  the  advantage  of  the  guaran- 
tee of  the  constitution  "that  no  state  without  its  consent,  shall 
be  deprived  of  its  equal  suffrage  in  the  Senate";  (6)  under 
direct  primary  laws  senators  are  now  in  effect  elected  in  many 
states  by  popular  vote. 

280.  State  Laws  on  Popular  Election  of  Senators  ^ 

Despairing  of  immediate  relief  through  the  action  of  Con- 
gress, many  states  have  enacted  provisions  which  grant  to 
the  voters  of  each  party  the  right  to  declare  their  choice  at  the 
party  primary  or  at  the  general  election.  As  early  as  1875  the 
followmg  provision  was  accepted  by  the  voters  of  Nebraska  as  a 
part  of  their  constitution.  "  The  legislature  may  provide  that,  at 
the  general  election  mimediately  preceding  the  expiration  of  the 

1  Haynes,  G.  H.,  The  Election  of  United  States  Senators,  p.  104. 

*  Direct  Primary  Nominations  (The  Citizens  Union,  N.  Y.,    1909),  pp. 

30-34-  .  ,    ^  ,       . 

'  State  action  described  in  sees.  280-283  was  written  before  adoption 

of  Federal  Amendment. 


364  Elections  of  Legislator  [§  280 

term  of  United  States  senator  from  this  state,  the  electors  may 
by  ballot  express  their  preference  for  some  person  for  the  office  of 
United  States  senator.  The  votes  cast  for  such  candidates  shall 
be  canvassed  and  returned  in  the  same  manner  as  for  state 
officers."  ^ 

Likewise,  this  practice  has  prevailed  for  some  time  in  many 
of  the  Southern  States  under  the  management  of  the  party 
organizations  without  any  legal  sanction.^  Within  recent 
years  several  of  the  Southern  States  have  enacted  laws  which 
prescribe  in  a  general  way  the  form  of  procedure  under  which 
the  party  managers  shall  conduct  this  expression  of  the  prefer- 
ence of  the  voters.^  The  rapid  spread  of  this  practice 
within  recent  years  is  doubtless  due  to  the  defeat  of  the 
proposed  change  in  the  federal  constitution  by  Congress. 
The  movement  has  been  aided  materially  through  the 
adoption  of  the  direct  primary  principle  in  making  nomina- 
tions by  state  law.  Within  the  decade  from  1900  nearly 
one-half  of  the  states  have  made  provision  for  a  popular 
vote  upon  the  candidates  for  office;  and  in  practically  all  of 
these,  the  vote  upon  candidates  for  the  United  States  Senate 
constitutes  a  part  of  the  direct  nomination  of  elective 
officers. 

The  candidates  for  the  Senate  are  placed  upon  the  official 
primary  ballot  in  the  same  manner  as  other  candidates  and  the 
results  submitted  to  the  state  legislature.  It  is  the  aim  of 
these  laws  that  the  party  candidate  receiving  the  largest  num- 
ber of  votes  shall  be  the  candidate  of  the  members  of  said  party 
in  the  state  legislature.  It  is  ob\ious  that  the  instructions 
of  the  voters  are  not  legally  binding,  for  the  federal  constitution 
grants  to  the  members  of  the  legislature  the  right  to  choose 
senators  without  any  limitations.  But  neither  is  the  action  of 
the  party  caucus  legally  binding,  and  it  is  the  purpose  of  the 
advocates  of  a  popular  vote  that  the  mandate  of  the  party  voters 

1  Neb.  Const.  1875,  XVI,  sec.  312. 

'^  Ha>Ties,  G.  H.,  The  Election  of  United  States  Senators,  pp.  137-39- 

'  Md.  Laws,  1908,  ch.  400,  sec.  i. 


§  28i]  Popular  Designation  365 

shall  take  the  place  of  the  party  caucus.     The  important  ques- 
tion is  whether  this  has  been  accompUshed. 

281.  Effect  of  Popular  Designation  of  Senators 
Professor  Haynes  shows  that  the  popular  choice  of  senators 
is  a  success  in  the  Southern  States  where  the  real  contest  is 
within  the  Democratic  Party  and  not  between  two  parties. 
In  South  Carolina  the  members  of  the  legislature  are  required 
to  take  oath  that  they  will  support  the  successful  primary  can- 
didate, but  m  the  other  Southern  States  even  this  safeguard 
is  deemed  unnecessary.^ 

Reasoning  from  the  Nebraska  experience  and  the  first  elec- 
tion under  the  Oregon  primary  law  which  provided  for  popular 
election  of  senators,  Professor  Haynes  concludes  that  in  the 
Northern  States  where  two  parties  are  almost  equally  strong, 
this  method  will  "prove  a  delusion  and  a  snare."  2  He  shows 
that  in  four  elections  in  Nebraska  in  which  the  legislature  made 
provision  for  popular  choice,  the  legislature  only  once  elected 
the  candidate  receiving  the  largest  number  of  votes  at  the  elec- 
tion; whereas,  in  one  instance,  they  selected  a  candidate  who 
did  not  announce  himself  a  candidate  at  the  election  at  all.^ 
He  cites  the  Oregon  case  of  1902  when  the  legislature  of  that 
state  finally  elected  a  person  as  United  States  senator  who  was 
not  voted  upon  at  the  primary.'* 

Within  more  recent  years,  however,  the  states  have  made 
a  strong  effort  to  make  the  popular  vote  mandate  as  effective  as 
the  party  whip  in  the  party  legislative  caucus  has  been  in  the 
past.  Although  a  few  states  exphcitly  provide  that  the  vote 
for  candidate  shall  be  "for  the  sole  purpose  of  ascertaining  the 
sentiment  of  the  voters  of  the  respective  parties,"  ^  the  provi- 
sions of  the  other  laws  assume  a  more  commandmg  tone.    The 

1  Haynes,  G.  H.,  The  Election  of  United  States  Senators,  pp.  137-39- 

2  Haynes,  G.  H.,  The  Election  of  United  States  Senators,  p.  152. 
'  Haynes,  G.  H.,  The  Election  of  United  States  Senators,  p.  143- 

*  Haynes,  G.  H.,  The  Election  of  United  Slates  Senators,  pp.  145-47- 
s  Iowa  Laws,   1907,  ch.  51,  sec.   i;  Mich.  Laws,  Extra  Session,  1907, 
October  24,  sec.  40;  Cal.  Statutes,  1909,  ch.  405,  p.  691. 


366  Election  of  Legislators  [§  281 

Kansas  law  "directs  that  the  same,"  viz.,  the  popular  choice, 
"be  carried  out  by  the  party  members  of  the  legislature  of  the 
state."  ^  The  Maryland  law  "requires  said  senators  and  mem- 
bers of  the  House  of  Delegates  to  vote  for  the  candidates  for 
United  States  senator  who  at  said  primary  elections  shall  have 
received  the  greatest  number  of  votes  cast  in  the  county  or 
legislative  district  from  which  said  senator  and  member  of  the 
House  of  Delegates  shall  have  been  elected."  ^  The  Missouri 
law  is  even  more  emphatic.  It  states  that  the  popular  party 
choice  "shall  be  declared  to  be  the  caucus  nominee  of  said  polit- 
ical party  and  all  members  of  said  party  in  the  legislature  shall 
vote  for  said  person."  ^ 

Notwithstanding  these  commands,  the  members  of  the  state 
legislature  may  act  as  they  please.  In  most  cases,  no  doubt, 
a  member  will  weigh  carefully  the  effect  of  independent  action 
upon  his  political  future;  and  in  recent  senatorial  elections, 
political  expediency  from  the  standpoint  of  self-interest  has 
resulted  in  general  obedience  to  the  choice  of  the  voters.  If, 
however,  the  state  of  Maryland  had  authority  to  enforce  this 
mandatory  provision  of  the  law,  it  is  not  certain  that  a  choice 
would  result  in  the  legislature.  Each  member  is  commanded 
to  vote  for  the  popular  choice  of  his  party  in  his  own  district. 
This  might  mean  that  three  or  more  candidates  might  appear 
for  the  majority  party,  with  the  result  that  no  candidate  could 
possibly  obtain  a  majority  vote  in  the  legislature.  In  fact  other 
provisions  of  the  Maryland  law  make  such  a  result  very  prob- 
able, for  the  law  provides  that  anyone  may  be  a  candidate  at 
the  election  who  declares  himself  a  candidate  to  the  state  party 
committee.  He  need  not  present  any  petition  signed  by  the 
specified  percentage  of  voters  as  in  most  states.  This  encour- 
ages multiplicity  of  candidates  and  the  probability  that 
different  candidates  will  receive  a  majority  of  the  party  vote 
in  different  legislative  districts. 

'  Kans.  Laws,  iqo8,  Special  Session,  ch.  54,  sec.  14. 
2  Md.  Laws,  1908,  ch.  400,  sec.  i. 
'  Miss.  Laws,  1907,  March  15,  sec.  6. 


§  282]  Oregon  System  367 

282.  Oregon  System  for  Choice  of  Senators 
Such  a  dilemma  is  obviated  in  most  states  by  providing  that 
the  candidate  who  receives  the  largest  number  of  his  party's 
votes  of  the  entire  state  ^  or  the  candidate  who  carries  a  major- 
ity of  the  assembly  districts  shall  be  the  candidate  of  his  party; 
or,  as  is  the  case  in  Oregon,  that  the  successful  party  candidate 
of  the  primary  who  receives  the  largest  number  of  votes  in  the 
general  election  shall  be  the  only  candidate  in  the  state  legisla- 
ture.2  The  Oregon  law  further  recognizes  that  the  popular 
vote  can  be  only  morally  binding.  In  order  to  impress  this 
upon  the  members  of  the  state  legislature,  the  Oregon  law  per- 
mits each  candidate  for  nomination  at  the  primaries  to  sign  one 
of  two  statements  which  accompany  the  petition  for  nomina- 
tion.   These  statements  are  as  follows: 

No.  I. 

"I  further  state  to  the  people  of  Oregon,  as  well  as  to  the 
people  of  my  legislative  district,  that  during  my  term  of  office 
I  will  always  vote  for  that  candidate  for  United  States  Senator 
in  Congress  who  has  received  the  highest  number  of  the  people's 
vote  for  that  position  at  the  general  election  next  preceding  the 
election  of  a  senator  in  Congress,  without  regard  to  my  individ- 
ual preference." 

No.  II. 

"During  my  term  of  office  I  shall  consider  the  vote  of  the 
people  for  United  States  Senator  in  Congress  as  nothing  more 
than  a  recommendation,  which  I  shall  be  at  liberty  to  wholly 
disregard,  if  the  reason  for  doing  so  seems  to  me  to  be 
sufficient."  ^ 

1  Iowa  Laws,  1907,  ch.  51,  sec.  i;  Kans.  Laws,  1908,  Special  Session, 
ch.  54,  sec.  14;  Mich.  Laws,  1907,  Special  Session,  October  24,  sec.  40;  Mo. 
Laws,  1907,  March  15,  sec.  6;  S.  D.  Laws,  1909,  March  9,  sec.  61. 

'^  Ore.  Laws,  1901,  p.  143,  sec.  i. 

'  Ore.  Laws,  1905,  pp.  7-40,  sec.  13.  Similar  provision  is  made  in  the 
Nebraska  Law  of  1909,  March  4,  sec.  i. 


368  Election  of  Legislators  [§  283 

Most  candidates  for  nomination  for  membership  in  the  state 
legislature  of  Oregon  consider  it  expedient  to  sign  statement 
No.  I,  for  it  has  an  important  bearing  upon  their  success  in 
the  party  primary  and  in  the  general  election.  This  fact  was 
strikingly  illustrated  in  the  election  of  1908,  when  the  ensuing 
legislature  elected  a  United  States  senator.  A  large  majority 
of  the  candidates  signed  statement  No.  I.  The  result  of  the 
election  was:  (i)  a  Republican  state  legislature  and  (2)  a 
Democrat,  Governor  Chamberlain,  the  popular  choice  of  the 
election.  The  action  of  the  Republican  state  legislature  was  to 
choose  a  Democrat  to  the  United  States  Senate.  When  such 
results  can  be  obtained  in  Oregon,  there  is  strong  reason  that 
the  less  drastic  requirements  of  the  laws  of  other  states — viz., 
that  the  popular  primary  choice  of  a  party  shall  receive  the 
vote  of  the  members  of  his  party  in  the  legislature  —  will  be 
obeyed.  Such,  in  fact,  has  been  the  result  in  several  recent 
senatorial  elections. 

283.  Effect  of  Primary  Vote  on  the  Legislature 

Occasionally,  however,  the  vote  at  the  primary  is  so  small 
that  members  of  the  state  legislature  are  incHned  to  the  posi- 
tion that  such  a  vote  cannot  be  considered  a  true  expression 
of  the  voters.  In  the  last  primary  in  the  state  of  New  Jersey 
(1910)  the  total  Democratic  vote  for  members  of  the  assembly 
was  213,273,  whereas  the  total  vote  for  all  the  Democratic 
candidates  for  the  United  States  Senate  was  only  64,022,  out 
of  which  the  successful  candidate  had  48,448,  which  constitutes 
a  little  more  than  one-fifth  of  the  total  party  vote.  This  con- 
dition, however,  is  chiefly  due  to  the  fact  that  the  New  Jersey 
law  does  not  make  a  popular  vote  a  requirement  for  candidacy 
before  the  state  legislature,  but  leaves  it  optional  with  the 
candidate.  Consequently  some  candidates  absolutely  refuse 
to  go  before  the  people.  In  spite  of  this  fact  the  senatorial 
election  of  191 1  in  New  Jersey  resulted  in  the  choice  of  the 
candidate  who  received  the  highest  number  of  votes  in  the 
primary. 


§  284]  City  Councils  369 

284.   Choice  of  City  Coimcils 

The  members  of  the  city  council,  whether  unicameral  or  bi- 
cameral, are  to-day  chosen  by  the  people.  This  practice  has 
prevailed  with  slight  exceptions  from  the  beginning.  In  this 
respect  the  colonial  charters  differed  from  those  of  England, 
for  "only  in  Philadelphia,  Annapolis,  and  Norfolk  was  the 
governing  authority  made  a  close  corporation.  In  these  places 
the  aldermen  and  the  councilmen  held  their  positions  for  life, 
and  vacancies  among  the  aldermen  were  filled  by  the  common 
council  and  vacancies  among  councilmen  by  the  mayor,  re- 
corder and  aldermen."  ^  In  all  other  boroughs,  however, 
"the  councilmen,  and  except  in  Perth  Amboy  and  Trenton, 
the  aldermen  also  were  elected  by  a  popular  vote.  .  .  .  Elec- 
tive aldermen  and  councilmen  were  chosen  for  a  term  of  one 
year,  except  m  Elizabeth,  where  the  term  was  three  years,  and 
Trenton,  where  strangely  enough  it  was  for  life."  ^ 

Following  the  Revolution,  between  1783  and  1789,  a  number 
of  municipal  charters  were  created  by  legislative  acts.  Charles- 
ton (S.C.)  received  a  new  charter  in  1783;  New  Haven,  Hart- 
ford, Middleton,  New  London,  and  Norwich  (Conn.),  Newport 
(R.I.),  and  Nashville  (Tenn.),  in  1784;  Hudson  (N.Y.),  in 
1785;  and  Philadelphia  in  1789.  In  all  of  these  the  close  cor- 
poration was  rejected  and  the  elective  principle  was  intro- 
duced.^ Baltimore  received  a  city  charter  in  1797  which 
placed  a  slight  limitation  upon  the  elective  system.  The 
upper  chamber  was  elected  by  a  college  of  electors,  similar  to 
the  election  of  state  senators,  composed  of  one  member  chosen 
from  each  ward.  But  this  system  was  soon  changed  so  as  to 
provide  for  an  elective  upper  chamber.  ^  ■ 

1  Fairlie,  J.  A.,  Municipal  Adminislralion,  p.  77;  Bolles,  A.  S.,  Pennsyl- 
vania Province  and  State,  vol.  ii,  p.  271. 

2  Fairlie,  J.  A.,  Municipal  Administration,  p.  77;  Ash,  W.,  Greater  New 
York  City  Charter  (1906),  pp.  1166,  1169,  1187. 

»  Fairlie,  J.  A.,  Municipal  Administration,  pp.  77,  78. 
*  Fairlie,  J.  A.,  Municipal  Administration,  p.  79. 

25 


CHAPTER  XXVII 

PROTECTION  OF  LEGISLATORS 

285.  References 

Bibliography:  A.  B.  Hart,  Manual  (1908),  §§  iii,  112,  137,  215;  A.  B. 
Hart,  Actual  Government  (rev.  ed.,  1910),  §  no;  E.  McClain,  Constitutional 
Law  (rev.  ed.,  1910),  §31;  Margaret  A.  Schaffner,  Lobbying  (Wis.  Legisla- 
tive Reference  Department,  Bulletin  No.  2,  1906). 

Freedom  of  Speech  and  Debate:  T.  P.  Taswell-Langmead,  English 
Constitutional  History  (1879),  ch.  ix;  H.  Taylor,  The  Origin  and  Growth  of 
the  English  Constitution  (1889),  I,  part  iii,  eh.  ii;  T.  M.  Cooley,  Constitu- 
tional Limitations  (7th  ed.,  1903),  chs.  vi,  xii;  T.  M.  Cooley,  Constitutional 
Law  (1898),  ch.  iii;  J.  Story,  Commentary  on  the  Constitution  (5th  ed., 
1891),  §§  856-863;  J.  R.  Tucker,  Constitution  (1899),  438,  44i;  F-  J-  Stim- 
son,  Federal  and  State  Constitutions  (1908),  §§  272-273. 

Relief  Against  the  Lobby  and  Bribery:  P.  S.  Reinsch,  Legislatures 
and  Legislative  Methods  (1907),  chs.  viii,  ix;  J.  W.  Jenks,  Money  in  Politics 
{Century,  XXII);  G.  F.  Edmunds,  Corrupt  Political  Methods  (Foram,XVII); 
G.  H.  Haynes,  The  Election  of  Senators  (1906);  J.  Bryce,  American  Common- 
wealth (rev.  ed.,  1910),  I,  ch.  xv,  Appendix,  note  3,  II,  ch.  Ixvii;  C.  A.  Beard, 
American  Government  and  Politics  (1910),  543-544;  Margaret  A.  Schaffner, 
Lobbying  (Wis.  Comparative  Legislation,  Bulletin  No.  2,  1906);  G.  S. 
Bourinot,  Parliamentary  Procedure  and  Practice  (18S4),  584-680;  T.  M. 
Cooley,  Constitutional  Limitations  (7th  ed.,  1903),  196-199,  202-217; 
F.  J.  Stimson,  Federal  and  State  Constitutions  (1908),  §  152;  A.  B.  Hart, 
Actual  Government  (rev.  ed.,  1908),  §§  63,  151;  New  York  Assembly  Doc, 
No.  4  (1906);   T.  Roosevelt,  American  Ideals  (1897),  63-66. 

286.  Freedom  of  Speech  and  Debate 

If  legislators  are  to  be  held  responsible  for  efficiency  as  well 
as  fidelity  in  the  performance  of  their  duties,  they  must  be 
protected  against  any  interference  either  by  executive  or  by 
judicial  officers  or  by  those  in  non-official  capacities  who  may 
have  an  interest,  in  subjects  of  legislative  consideration.  This 
privilege  was  being  established  in'  England  at  the  time  American 
colonization  began.  It  was  fought  for  and  won  by  the  English 
Parliament  in  its  struggle  with  the  Crown  during  the  Stuart 


§  287]  Freedom  from  Arrest  371 

reign.  After  the  dissolution  of  the  Parliament  of  1614  ^  by 
James,  which  had  failed  to  enact  a  single  statute  and  had  occu- 
pied itself  with  a  denunciation  of  the  king's  financial  methods, 
James  strained  his  prerogative  and  outraged  the  privileges  of 
the  house  by  committmg  four  members  to  prison  for  their  acts 
while  in  Parhament.  He  repeated  this  outrage  after  the  disso- 
lution of  the  Parliament  of  1613,^  which  had  occupied  itself 
with  a  vindication  of  the  privilege  of  freedom  of  speech  which 
the  King  with  his  own  hand  struck  from  the  Journal.  Charles 
I  followed  in  the  footsteps  of  his  father  and  violated  the  same 
privilege  at  the  beginning  of  his  reign,  and  again  in  1629,  in 
violation  of  the  Petition  of  Right,  he  imprisoned  five  members 
for  their  acts  while  in  Parliament.  The  reaction  was  sufficient 
to  settle  beyond  all  future  controversy  the  immunity  of  legis- 
lators in  English-speaking  countries.  By  the  time  of  the 
establishment  of  the  constitutional  monarchy  in  1688,  this 
privilege  was  a  recognized  principle  of  the  written  law  limiting 
the  powers  of  the  Crown  and  the  Judiciary. 

Members  of  Congress  and  of  state  legislatures  are  protected 
against  judicial  and  executive  interference  on  account  of 
anything  which  they  may  say  while  in  their  respective  houses 
while  engaged  in  the  performance  of  legislative  duties.^  This 
principle  was  so  much  a  part  of  the  political  thought  of  the 
time  that  there  was  no  debate  concerning  it  in  any  of  the  early 
state  constitutional  conventions  or  in  the  federal  convention. 

287.  Freedom  from  Arrest 

Not  only  is  the  legislator  constitutionally  protected  in  his 
freedom  from  restraint,  but  he  also  has  a  constitutional  guaran- 
tee that  he  will  not  be  interrupted  in  his  work  except  for  very 
good  cause,  either  by  other  bodies  of  the  government  or  by 
citizens.  One  of  the  privileges  or  immunities  which  members 
of  the  legislative  bodies  have  obtained  after  a  long  struggle  is 

^  May,  T.  E.,  Democracy  in  Europe,  vol.  ii,  p.  389. 

2  May,  T.  E.,  Democracy  in  Europe,  vol.  ii,  pp.  390,  393,  396. 

'  Stimson,  F.  J.,  Federal  and  Stale  Constitutions,  sec.  272,  p.  236. 


372  Protection  of  Legislators  [§  288 

freedom  from  arrest  while  going  to,  attending,  or  coming  from 
sessions  of  that  body.^  This  freedom  is  specifically  granted  to 
members  of  Congress  by  the  federal  constitution  in  all  cases, 
"except  for  treason,  felony,  or  the  breach  of  the  peace."  ^ 
Similar  provisions  appear  in  the  constitution  of  most  states.' 
The  immunity  from  arrest  before  and  after  the  session  is  lim- 
ited to  fifteen  days  in  CaHfornia,  Mississippi,  Missouri,  Utah, 
and  Virgmia  and  to  ten  days  in  South  Carolina  and  West  Vir- 
ginia. In  some  states  they  are  so  privileged,  with  the  excep- 
tions noted,  at  all  times  while  members  of  the  legislature.  Still 
more  detailed  protection  is  enumerated  in  some  constitutions. 
In  two  they  cannot  be  arrested  or  held  to  bail  upon  mesne  pro- 
cess, in  others  they  cannot  be  subjected  to  any  civil  process, 
while  in  still  others  their  property  cannot  be  attached  on  any 
civil  action. 

288.   Relief  against  the  Lobby 

Interference  with  official  duty  by  non-official  persons  has 
also  at  times  proved  a  serious  menace.  At  the  present  time  two 
state  constitutions  and  the  statutes  of  seven  others  make  some 
provision  for  the  protection  of  members  of  the  state  legislature 
against  undue  personal  influence.  This  interference  with  the 
expression  of  views  and  the  enactment  of  laws  as  an  mterpre- 
tation  of  the  sovereign  will  by  the  legislature  usually  emanates 
from  the  hired  agents  of  great  corporations  who  seek  favors 
through  special  legislation  or  who  attempt  to  prevent  so-called 
strike  legislation. 

So  serious  has  this  interference  become  that  popular  resent- 
ment has  expressed  itself  in  drastic  measures.  The  constitu- 
tions of  California  and  Georgia  declare  lobbying  a  felony.* 
The  former  constitution  defines  lobbymg  to  be  the  seeking  to 
influence  the  vote  of  a  member  of  the  legislature  by  bribery, 
promise  of    reward,  intimidation,  or  other  dishonest   means. 

1  Taswell-Langmead,  T.  P.,  English  Constitutional  History,  p.  419. 

2  Art.  I,  sec.  6. 

'  Stimson,  F.  J.,  Federal  and  Slate  Constitutions,  sec.  273,  pp.  236,  237. 
<  Cal.  Const.  IV,  35;  Ga.  Const.,  i,  2,  5. 


§289]  Bribery  of  Legislators  373 

New  York  provides  by  statute  that  "  every  person  retained  or 
employed  for  compensation  as  counsel  or  agent  by  any  person, 
firm,  corporation,  or  association,  to  promote  or  oppose  directly  or 
indirectly  the  passage  of  any  bill  or  resolution,  by  either  house, 
.  .  .  must  be  registered  every  year  in  the  office  of  the  Secre- 
tary of  State,  and  must  give  the  name  of  the  person  or  associa- 
tion by  whom  he  is  retained  and  at  the  same  time  furnish  a 
brief  description  of  the  legislation  for  or  against  which  he  is 
working."  The  law  further  requires  every  corporation  or  per- 
son to  file  a  complete  statement  with  the  Secretary  of  State 
of  all  the  money  spent  in  influencing  legislation  during  the 
immediately  preceding  session. 

The  Wisconsin  law  is  by  far  more  stringent.  It  forbids 
any  legislative  agent  or  counsel  to  attempt  to  influence  legisla- 
tion in  any  other  way  than  by  arguing  before  committees  and 
filing  printed  briefs  with  the  members  of  the  two  houses.^  The 
Oklahoma  statute  is  also  extreme.  It  declares  that  any  attempt 
to  influence  personally,  either  directly  or  indirectly,  any  mem- 
ber of  the  state  legislature  by  a  paid  agent  of  a  corporation, 
etc.,  is  against  public  policy.  Such  an  agent,  however,  may 
appear  before  the  regular  committee  dealing  with  the  bill  in 
which  the  parties  he  represents  are  concerned  after  having 
obtained  permission  from  the  presiding  officer  subject  to 
approval  by  the  house  concerned.  His  application  to  the  pre- 
siding officer  must  reveal  his  identity  and  his  compensation 
received  from  specified  corporations,  etc.^ 

289.   Bribery  of  Legislators 

The  members  of  the  legislature  are  still  further  protected 
against  citizen  interference  through  the  general  provisions 
against  bribery  in  the  constitutions  and  statutes.  Nine  state 
constitutions  declare  that  bribery  of  an  officeholder,  whether 

^  Similar  laws  have  been  enacted  in  the  states  of  Idaho,  Massachusetts, 
Missouri,  Nebraska,  and  South  Dakota.  Beard,  C.  A.,  American  Government 
and  Politics,  pp.  542,  544. 

2  Okla.,  Laws,  1907-1908,  p.  499. 


374  Protection  of  Legislators  [§289 

accomplished  or  attempted,  constitutes  a  felony  on  the  part 
of  the  bribe  giver.  In  sixteen  states  any  person  convicted  of 
bribery  is  disfranchised  for  a  specified  period  of  time.  In  other 
states,  punishment  for  bribery  of  an  oflficeholder  is  determined 
by  law.  Similar  punishments  are  specified  for  members  of  the 
legislative  bodies  who  soHcit,  receive,  or  offer  to  receive  bribes.^ 
The  provisions  of  the  constitution  of  Colorado  may  be  taken  as 
typical: 

"Any  person  who  shall,  directly  or  indirectly,  offer,  give,  or 
promise  any  money  or  thing  of  value,  testimonial,  privilege,  or 
personal  advantage  ...  to  any  member  of  the  General  Assem- 
bly to  influence  him  in  the  performance  of  any  of  his  public 
or  official  duties,  shall  be  deemed  guilty  of  bribery,  and  shall 
be  punished  in  such  manner  as  shall  be  provided  by  law. 

"The  offence  of  corrupt  solicitation  of  members  of  the 
General  Assembly,  or  the  public  officers  of  the  State,  or  any 
municipal  division  thereof,  and  any  occupation  or  practice  of 
solicitation  of  such  members  or  officers  to  influence  their 
official  action,  shall  be  defined  by  law,  and  shall  be  punished 
by  fine  and  imprisonment. 

"No  person  hereafter  convicted  of  .  .  .  bribery  .  .  .  solici- 
tation of  bribery  .  .  .  shall  be  eligible  to  the  General  Assem- 
bly, or  capable  of  holding  any  office  of  trust  or  profit  in  the 
state." 

It  is  further  provided  that  members  of  the  General  Assembly 
who  solicit,  demand,  or  receive  bribes  shall  suffer  the  above 
disabihties;  ^  and  members  of  the  legislature  are  protected 
against  the  use  of  this  form  of  executive  influence,  by  the 
constitutions  of  several  states.  The  constitutions  of  North 
Dakota,  South  Dakota,  and  Wyoming  contain  essentially  the 
following  provisions  prescribing  punishment  of  the  governor  who 
is  guilty  of  receiving  bribes  to  influence  legislation: 

"Any  governor  of  this  state  who  asks,  receives,  or  agrees  to 
receive  any  bribes  upon  any  understanding  that  his  official 

^  Stimson,  F.  J.,  Federal  and  State  Constitutions,  sec.  152,  p.  184. 
*  Col.  Const.,  1876,  art.  V,  sees.  41-42;  art.  XII,  sees.  4,  6. 


§  289]  Bribery  of  Legislators  375 

opinion,  judgment,  or  action  shall  be  influenced  thereby,  or 
who  gives  or  offers  or  promises  his  official  influence  in  consider- 
ation that  any  member  of  the  legislative  assembly  shall  give 
his  oflScial  vote  or  influence  on  any  particular  side  of  any  ques- 
tion or  matter  upon  which  he  may  be  required  to  act  in  his 
official  capacity,  or  who  menaces  any  member  by  the  threatened 
use  of  his  veto  power,  or  who  offers  or  promises  any  member 
that  he,  the  said  governor,  will  appoint  any  particular  person 
or  persons  to  any  office  created  or  thereafter  to  be  created, 
in  consideration  that  any  member  shall  give  his  official  vote 
or  influence  on  any  matter  pending  or  thereafter  to  be  introduced 
into  either  house  of  said  legislative  assembly,  or  who  threatens 
any  member  that  he,  the  said  governor,  will  remove  any  per- 
son or  persons  from  office  or  position,  with  intent  in  any  manner 
to  influence  the  action  of  said  member,  shall  be  punished  in  a 
manner  now,  or  that  may  hereafter  be,  provided  by  law,  and 
upon  the  conviction  thereof  shall  forfeit  all  right  to  hold  or 
exercise  any  office  of  trust  in  this  state."  ^ 

1  Stimson,  F.  J.,  Federal  arid  Slate  Conslitutions,  sec.  154,  p.  185. 


CHAPTER  XXVIII 

MEANS    OF    MAKING    LEGISLATORS    RESPONSIVE    TO    THE 
POPULAR  WILL 

290.  References 

Bibliography:  List  of  References  on  the  Initiative,  Referendum,  and 
Recall  (Lib.  of  Cong.,  191 2);  Margaret  A.  Schaffner,  The  Recall  (Wis. 
Comparative  Legislation,  Bulletin  No.  12);  E.  S.  Bradford,  Commission 
Government  in  American  Cities  (191 1),  343-353- 

The  Recall  of  Legislative  Officers:  E.  S.  Bradford,  Commission 
Government  in  American  Cities  (1911),  ch.  xix;  The  Code  of  the  People's  Ride 
(61  Cong.,  2  sess.,  LXI,  No.  603,  Sen.  Docs.);  F.  J.  Goodnow,  Municipal 
Government  (1908),  ch.  ix;  Beard  and  Schultz,  Documents  on  the  Initiative, 
Referendum,  and  Recall  (1912),  52-69,  Appendix,  365;  E.  P.  Oberholtzer, 
The  Referendum  in  America  (1911),  ch.  xviii;  National  Municipal  League, 
Proceedings,  esp.  1906,  1908-1912;    Yale  Review,  X\TII. 

Publicity  m  Legislation:  W.  Ash,  The  Greater  New  York  City  Charter 
(1906),  §  226;  F.  J.  Stimson,  Federal  and  State  Constitidions  (1908),  §§  237, 
27s;  J-  Schouler,  Constitutional  Studies  (1897),  56;  L.  G.  McConachie, 
Congressional  Committees  (1898),  56-70,  236-238;  Taswell-Langmead, 
English  Constitutional  History  (1879),  579-587;  C.  A.  Beard,  American 
Government  and  Politics  (1910),  544-545;  P.  S.  Reinsch,  Legislatures  and 
Legislative  Methods  (1907). 

Legislative  Reference  Bureaus:  H.  Putnam,  Legislative  Reference 
Bureaus  (Library  of  Congress,  Report,  1911,  App.  iv);  C.  A.  Beard,  Ameri- 
can Government  and  Politics  (1910),  ch.  xxv;  E.  Freund,  The  Problem  of 
Intelligent  Legislation  (Am.  Pol.  Sci.  Assoc,  Proceedings,  1907,  69-79);  C. 
McCarthy,  Remedies  for  Legislative  Conditions  (Ibid.,  80-102);  P.  S.  Reinsch, 
Legislatures  and  Legislative  Methods  (1907),  ch.  ix;  American  Political 
Scietice  Review,  May  and  August,  1909. 

291.   Ante-Election  Methods  of  Impressing  the  Popular  Will  on 
Candidates 

The  means  for  impressing  the  will  of  the  people  on  legisla- 
tive agents  before  the  election  have  been  discussed  in  the  chap- 
ters dealing  with  the  legal  and  extra-legal  safeguards  thrown 
about  elections  and  need  here  be  stated  only  in  general  terms. 
Personal   registration  laws   curtail   false  voting  at  the  prima- 


§  292]  Petition  and  Remonstrance  377 

ries  and  elections;  nominating  machinery  became  more  effec- 
tive and  representative,  first,  through  the  system  of  instructed 
delegates  to  conventions,  and  later,  through  the  rapid  growth 
of  the  direct  system  of  nomination  of  candidates.  Independ- 
ence of  voters  at  elections  has  been  aided  by  the  Massachusetts 
ballot,  which  abolishes  the  party  column,  circle,  and  emblem. 
Platforms  have  become  more  binding  by  makmg  them  per- 
sonal rather  than  party  pledges,  especially  under  the  direct 
system  of  nominatmg  candidates.  In  some  states  a  candidate 
may  cause  to  be  printed  on  the  primary  ballot  a  short  statement 
of  policies  that  he  favors.  In  Oregon  he  may  sign  a  statement 
before  election  declaring  that  he  will  vote  for  the  people's  choice 
of  United  States  senator.  In  fact  an  advisory  vote  upon  the 
people's  choice  of  United  States  senator  in  somewhat  less  rad- 
ical form  is  now  taken  in  almost  one-half  of  the  states.  Prefer- 
ential voting  and  proportional  representation  are  also  in  vogue 
in  a  limited  way,  aiming  to  procure  a  more  representative  legis- 
lature. All  of  these  various  devices  have  for  their  aim  the  elec- 
tion of  a  legislature  which  is  representative  of,  and  hence  more 
responsive  to,  the  sovereign  will. 

292.  Petition  and  Remonstrance 
Still  more  numerous  are  methods,  rapidly  extending,  which 
aim  to  impress  the  will  of  the  people  upon  members  of  the  legis- 
lature after  election.  The  logic  of  constitutional  and  legal  pro- 
visions bearing  on  this  subject  is  that  while  representatives 
should  not  be  subjected  to  great  pressure  and  temptations 
from  outside  influences  brought  to  bear  through  persons  who 
approach  them  privately  and  secretly,  they  at  all  times  ought  to 
be  open  to  public  expression  of  the  views  of  constituencies. 
In  fact  the  begmning  of  constitutional  government  lies  in  the 
forced  recognition  of  the  principle  of  responsibility  of  officers 
to  citizens  —  the  practical  operation  of  this  principle  so  far 
as  legislators  are  concerned  being  found  in  provisions  for  im- 
pressing the  will  of  the  people  on  the  lawmakers  with  added 
provisions  for  retiring  them  from  office  if  they  fail  to  respond. 


3/8  Responsibility  of  Legislators         [§  293 

Almost  from  the  beginning  of  representative  government, 
citizens  have  exercised  the  right  of  petitioning  their  legislature 
for  the  redress  of  grievances.  May,  in  his  Democracy  in  Europe, 
holds  that  imtil  the  meeting  of  the  Long  Parliament  in  England 
in  1640  the  exercise  of  this  right  had  been  wholly  unknown, 
but  that  since  that  time  use  of  the  petition  for  impressing  the 
popular  view  upon  public  policies  became  common.  The  col- 
onists made  extensive  use  of  this  right,  both  in  addressing  their 
own  assemblies  and,  during  their  struggle  with  England  immedi- 
ately prior  to  the  Revolution,  in  petitioning  Parliament  for  the 
redress  of  grievances.  This  right  is  closely  associated  with  a 
number  of  other  rights,  such  as  freedom  of  assembly,  free 
speech,  and  free  press,  which  already  have  been  discussed. 

293.  Public  Hearings 

Another  and  even  a  more  direct  method  for  impressing  the 
will  of  the  electorate  is  the  right  or  privilege  granted  to  citizens 
to  appear  before  legislative  bodies  or  committees  at  public  hear- 
ings on  questions  of  policy,  before  the  final  vote  is  taken.  This 
is  a  privilege  granted  either  by  statute  or  by  legislative  rule  in 
most  cases,  but  in  some  instances  it  is  guaranteed  to  some  degree 
by  the  constitution  itself.  The  New  York  constitution  pro- 
vides that  any  special  bill  relating  to  a  city  shall  be  submitted 
to  the  mayor  of  the  city  affected  after  it  has  passed  the 
legislature,  and  the  mayor  in  cities  of  the  first  class,  and  the 
mayor  and  the  legislative  body  of  all  other  cities,  are  given 
the  authority  to  present  to  the  legislature  their  -objections  to 
the  proposed  measure.  But  the  constitution  further  provides 
that  before  the  stated  city  officers  can  take  action  thereon 
the  citizen  shall  be  given  an  opportunity  to  appear  at  a  public 
hearing  in  a  manner  prescribed  by  the  legislature.^  In  the  Char- 
ter of  New  York  City  this  right  is  further  extended  to  appro- 
priations. The  Charter  provides:  "Before  finally  determining 
upon  the  budget  the  board  of  estimate  and  apportionment 
shall  fix  such  sufi&cient  time  or  times  as  may  be  necessary  to 
*  N.  Y.  Const.,  art.  12,  sec.  2. 


§  294]  Popular  Legislation  379 

allow  the  taxpayer  of  said  city  to  be  heard  in  regard  thereto, 
and  the  said  board  shall  attend  at  the  time  or  times  so  appointed 
for  such  hearing."  ^  During  the  last  four  or  five  years  this 
right  has  been  much  more  effectually  used  than  previously, 
due  to  the  fact  that  a  citizen  agency,  the  Bureau  of  Municipal 
Research,  has  been  keeping  the  pubhc  informed  about  the  acts 
of  officers  by  making  available  the  data  necessary  to  discuss 
concrete  questions  of  policy  raised  by  the  budget. 

294.   Popular  Initiation  in  Legislation 

The  referendum  has  been  discussed  at  length;  a  more  direct 
method  for  popular  control  over  legislation  is  the  initiative. 
The  initiative  is  a  means  of  impressing  popular  will  on  the  legis- 
lature through  the  electorate.  Until  recently  the  referendum, 
and  especially  the  initiative,  had  only  a  very  limited  applica- 
tion. But  the  success  of  these  forms  of  expression  of  the  will 
of  the  people  has  caused  their  very  rapid  adoption  of  late. 
Failure  to  procure  action  demanded  of  legislators  has  been  the 
motive  for  enlarging  the  powers  of  the  electorate  as  an  agency 
of  government.  The  progress  of  the  initiative  and  the  refer- 
endum has  been  marked  and  experience  augurs  well  for  future 
extension.  It  is  believed,  however,  that  the  chief  merit  of 
legislation  through  the  electorate  in  the  future  will  be  to  show 
to  private  and  corporate  interests  the  futility  of  attempting 
to  subvert  the  functions  of  government  or  to  delay  welfare 
legislation ;  and  that  for  this  reason  the  actual  use  of  this  more 
difficult  method  of  enacting  laws  will  always  be  limited.  The 
initiative  and  the  referendum  are  cumbersome  methods  of 
obtaining  results,  but  they  are  sure,  and  add  strength  by  inspir- 
ing confidence  on  the  part  of  the  people  in  the  integrity  and 
virtue  of  their  institutions;  they  place  the  electorate,  as  the 
broad  representative  agency  of  organized  citizenship,  above  the 
official  class  for  determining  all  matters  of  policy  with  respect 
to  which  undue  influence  may  be  used;  they  give  to  citizens  a 
more  direct  interest  in  public  business  since  each  citizen  is  free 
^  Ash,  W.,  The  Greaier  New  York  Charter  (3d  ed.,  1906),  sec.  226. 


380  Responsibility  of  Legislators  [§§295,296 

to  discuss  questions  of  business  with  electors;  in  fact  the  whole 
body  politic  participates  in  the  consideration  of  measures  thus 
submitted,  the  voting  alone  being  confined  to  the  electorate. 

295.   Prorogation 

Down  to  the  time  of  the  Great  Civil  War  in  England,  the 
King  exercised  an  unlimited  right  to  prorogue  Parliament 
whenever  its  actions  displeased  him,  such  dissolution  lasting 
until  the  King  saw  fit  to  call  Parhament  together.  This  right 
was  abused  and  led  to  the  enactment  of,  first,  the  Triennial  Act, 
1694,  and  later  the  Septennial  Act,  1716.  However,  the  King 
still  possesses  the  right  to  dissolve  Parliament  whenever 
the  ministry  is  confronted  with  a  vote  of  non-confidence  upon 
an  important  measure  and  refuses  to  resign.  Such  a  dis- 
solution is  in  the  nature  of  a  "recall,"  not  of  one  member, 
not  even  of  a  few  members,  but  every  member  after  dissolu- 
tion must  go  before  his  constituents  to  vindicate  his  course  in 
ParHament.  Generally  speaking,  no  such  powers  can  be  exer- 
cised by  an  American  executive;  he  can  only  set  the  date  of 
adjournment  when  the  two  houses  fail  to  agree  upon  a  time. 
He  may,  however,  effectively  get  issues  before  the  country 
and  be  a  leading  factor  in  the  solution,  as  is  shown  later. 

296.  No  Direct  Control  of  Legislators  in  Office 
Members  of  the  legislature  are  fortified  in  their  position  for 
the  entire  time  they  are  elected  save  that  they  may  be  expelled 
by  their  own  house.  If,  therefore,  legislators  were  derelict  in 
their  duties,  they  could  not  be  forced  to  perform  them,  for  a 
member  could  not  be  mandamused.  If  they  were  guilty  of 
bribery,  malfeasance  in  office,  or  of  any  other  of  the  numerous 
acts  for  which  other  officers  may  be  impeached  by  members  of 
another  department,  they  would  be  subject  to  removal  only 
by  formal  action  of  their  own  body. 

Every  member  of  the  legislature  takes  an  oath  that  he  will 
obey  the  mandates  of  the  constitution,  and  yet  in  some  states 
legislatures  have  come  and  gone  for  years,  acting  in  direct  viola- 


§297]  Recall  in  States  381 

tion  of  their  oath.  The  Pennsylvania  constitution  of  1873  pro- 
vides that  the  legislature  shall  reapportion  the  senatorial  dis- 
tricts every  ten  years;  ^  notwithstanding  this  injunction,  within 
the  period  from  1873  to  1905  the  legislature  of  that  state 
repeatedly  violated  this  provision.  The  New  York  constitu- 
tion adopted  in  1894  declares  that  there  shall  be  no  gambling 
at  race  tracks  and  that  the  legislature  shall  enact  appropriate 
laws  to  enforce  this  provision,  and  still  gambling  was  permitted 
to  flourish  in  that  state  until  the  heroic  efforts  of  Governor 
Hughes  secured  appropriate  legislation  in  1909  by  convening 
the  legislature  in  extra  session  for  that  express  purpose.  There 
are  many  other  instances  of  legislators  openly  defying  the 
fundamental  law  of  the  state  and  thus  violating  their  oath  of 
oflSce.  When  the  authority  of  the  EngHsh  Crown  was  set 
aside,  a  way  was  provided  for  getting  the  issue  before  the 
people.  Here  the  supreme  powers  of  citizenship  have  been 
declared  in  the  written  constitution,  but  no  constitutional 
remedy  has  been  provided  whereby  citizens  may  make  their 
will  effective  until  some  subsequent  election  in  case  members 
of  the  legislature  decide  to  take  the  constitution  in  their  own 
hands. 

297.  Recall  in  State  Government 

Not  until  the  people  undertook  to  exercise  their  powers  of 
sovereignty  through  the  recall  was  there  any  provision  in  the 
fundamental  law  for  reaching  the  legislature  which  refused  to 
do  its  duty.  In  no  place  in  America,  however,  has  a  system 
been  adopted  which  permits  the  recall  of  all  the  members  of 
the  legislature  as  was  done  by  the  King  as  sovereign  in  the  dis- 
solution of  the  Houses  of  Parliament.  The  following  provision 
was  proposed  as  an  amendment  to  the  constitution  of  Oregon 
in  191 1  through  the  initiative:  "If  at  any  time  a  petition  shall 
be  filed  with  the  Secretary  of  State  signed  by  a  number  of  legal 

1  Pa.  Const.,  1873,  art-  Hi  sec.  i8.  The  provision  reads:  "The  General 
Assembly  at  its  first  session  after  the  adoption  of  this  Constitution,  and 
immediately  after  each  United  States  decennial  census,  shall  apportion  the 
state  into  senatorial  and  representative  districts." 


382  Responsibility  of  Legislators  [§298 

voters  equal  to  not  less  than  25  per  cent  of  the  whole  number 
of  electors  who  voted  for  justice  of  the  supreme  court  at  the 
last  preceding  general  election,  and  such  petition  shall  demand 
the  recall  of  the  legislative  assembly,  or  either  house  thereof, 
stating  the  reasons  therefor  in  no  more  than  two  hundred  words, 
the  Secretary  of  State  shall  immediately  order  a  special  general 
election  throughout  the  state,  to  take  place  in  not  less  than  sixty 
nor  more  than  ninety  days  from  the  date  of  filing  said  peti- 
tion." ^    This,  however,  was  defeated  by  a  small  plurality. 

298.  Application  of  Recall  in  Miuiicipalities 

In  1903  the  city  of  Los  Angeles  startled  the  politicians  and 
conservative  thinkers  by  providing  a  system  for  recall  of 
municipal  ofiicers.  It  is  a  plan  whereby  if  twenty-five  per  cent 
of  an  elective  ofiicer's  constituents  sign  a  statement  to  the 
effect  that  they  are  dissatisfied  with  his  course,  an  election  is 
called  forthwith,  and  he  must  contest  for  the  place,  as  to  the 
remainder  of  the  term,  with  any  that  may  be  nominated  against 
him.2  When  this  measure  was  before  the  people  of  Los  Angeles, 
it  was  contended  that  it  would  discourage  good  men  from  seek- 
ing office,  and  that  it  would  be  used  for  partisan  purposes  and 
result  in  frequent  changes  in  the  personnel  of  the  office. 
Notwithstanding  these  objections  the  voters  ratified  the 
amendment  by  a  four-fifths  majority.^ 

From  Los  Angeles  the  system  rapidly  spread  to  other  cities 
of  California,  such  as  Pasadena,  Fresno,  San  Bernardino,  San 
Diego,  Santa  Monica,  Alameda,  Santa  Cruz,  Long  Beach, 
Riverside,  San  Francisco,  and  Vallejo.'*  It  has  also  been  intro- 
duced in  many  cities  outside  of  California  which  have  adopted 
the  commission  form  of  government,  and  in  1908  the  people 
of  Oregon  ratified  an  amendment  to  the  constitution  which 
extends   the   recall    to    all    elective   officers    both    state  and 

1  The  Code  of  the  People's  Rule  (Sen.  Doc,  6i  Cong.,  2  Sess.,  No.  603), 

P-  153- 

*  National  Municipal  League,  Proceedings,  1905,  p.  104. 

3  National  Municipal  League,  Proceedings,  1905,  pp.  105,  106. 

*  National  Municipal  League,  Proceedings,  190S,  p.  240. 


§299]  Examples  of  Recall  383 

local.  ^  A  similar  amendment  was  proposed  by  the  legislature 
of  California  in  191 1  and  was  approved  by  the  voters  in  the 
following  general  election.^  Likewise  a  similar  pro\'ision  for 
the  recall  of  all  elective  officers  is  a  part  of  the  new  constitu- 
tion of  Arizona.* 

299.  Actual  Cases  of  Municipal  Recall 

Experience  with  the  recall  in  municipal  government  is  in- 
structive. Attention  has  already  been  called  to  the  claim  that 
the  recall  would  be  used  for  partisan  purposes  and  result  in  a 
frequent  change  in  the  personnel  of  the  members.  The  facts, 
however,  do  not  substantiate  this  view.  In  Los  Angeles  the 
recall  was  first  used  against  one  of  the  aldermen  in  1904  and  its 
use  was  threatened  a  second  time  "when  a  very  valuable  fran- 
chise was  about  to  be  given  away  to  one  of  the  trolley  corpora- 
tions; had  it  not  been  that  nearly  every  one  of  the  councilmen 
who  were  about  to  vote  to  surrender  this  valuable  asset  were 
threatened  with  the  recall,  it  certainly  would  have  passed."  ■*  In 
1907  the  recall  was  invoked  in  two  wards  of  San  Bernardino 
against  two  councilmen,  while  a  petition  against  one  of  the 
councilmen  of  San  Diego,  although  finally  declared  legal,  was 
held  up  so  long  that  the  term  of  the  councilman  expired  before 
the  adjudication.^  It  was  also  invoked  in  Junction  City,  Kans., 
and  in  Estacado,^  Ariz.  All  told  it  has  been  used  less  than 
twenty  times  since  its  adoption  in  Los  Angeles.'' 

Several  reasons  explain  this  conservative  attitude:  (i)  it 
is  a  well-recognized  truth,  as  declared  in  the  Declaration  of 
Independence,  that  men  will  suffer  abuses  and  injuries  before 
resorting  to  extraordinary  methods  for  relief;  (2)  to  secure  peti- 

^  Ore.  Const.,  art.  II,  sec.  i8. 

2  Cal.  Laws,  191 1,  Senate  Constitutional  Amendment,  No.  23;  Equity, 
January,  191 1,  No.  i,  pp.  70-72. 

'  Constitution  of  Arizona.     See,  ch.  .xxx. 

*  National  Municipal  League,  Proceedings,  1909,  pp.  328,  329. 
^  National  Municipal  League,  Proceedings,  igoS,  pp.  240,  241. 
8  National  Municipal  League,  Proceedings,  1909,  pp.  108. 
^  Equity,  XV,  62. 


384  Responsibility  of  Legislators  [§§300,301 

tions  signed  by  twenty-five  per  cent  of  the  voters  and  in  some 
cases  by  larger  percentages  is  no  easy  matter  and  will  neces- 
sarily act  as  a  restraining  force;  (3)  the  worst  violation  of  pub- 
lic trust  by  the  Los  Angeles  councilmen  was  the  proposal  to 
grant  a  valuable  franchise  for  nothing,  and  this  proposal  was 
defeated  by  a  mere  threat  to  use  the  recall  against  every  council- 
man who  dared  to  vote  for  it.  This  reveals  the  most  valuable 
service  of  the  recall.  It  is  not  its  actual  use,  but  the  knowl- 
edge that  it  can  be  used,  which  makes  officers  responsive  to  the 
public  will. 

300.  Legislative  Reference  Bureau 
Citizens  are  frequently  interested  in  wholesome  legislation, 
but  they  do  not  possess  the  means  for  obtaming  the  necessary 
information  for  intelligent  action.  A  remedy  for  this  defect 
is  the  Legislative  Reference  Bureau,  first  estabUshed  in  Wis- 
consin and  since  employed  in  five  other  states;  in  nine  others 
the  need  is  supplied  by  state  librarians  through  their  own 
initiative.  These  bureaus  codify  the  legislation  of  the  states 
and  other  countries  and  collect  other  material  pertaining 
thereto  on  any  subject  which  is  likely  to  be  introduced  in  the 
legislature.^ 

301.  Records  of  Votes  in  Legislatures 

As  a  basis  for  the  consideration  of  the  official  acts  of  legisla- 
tive agents,  the  constitution  of  every  state  save  that  of  Massa- 
chusetts provides  that  each  house  shall  keep  a  journal  of  its  own 
proceedings;  and  as  a  means  whereby  direct  responsibility  may 
be  placed  upon  each  individual  member,  in  four  states  the  yeas 
and  nays  must  be  entered  upon  the  journal  at  the  request  of 
one  member;  in  eleven  states  at  the  request  of  two  members; 
in  one  state  when  called  for  by  two  in  the  house  and  five  in  the 
senate;  in  four  states  when  required  by  three  members  of  either 
house,  and  in  five  states  when  called  for  by  five  members. 

1  Beard,  C.  A.,  American  Government  and  Politics,  pp.  544,  5451  Putnam, 
Herbert,  Legislative  Reference  Bureaus  (Library  of  Congress,  Report,  191 1, 
App.  iv). 


302. 


Open  Sessions  385 


A  number  of  the  constitutions  prescribe  that  the  yeas  and 
nays  must  be  entered  when  asked  for  by  one-fifth  of  the  mem- 
bers present  or  elected,  or  by  one-tenth  of  those  present.  Any 
protest  against  any  act  or  proceeding  which  is  deemed  injuri- 
ous to  the  public  must  be  placed  on  the  journal  when  so  re- 
quested by  a  member  in  eleven  states,  or  when  requested  by 
two  or  more  members  in  other  states.^  A  novel  practice  is  re- 
quired in  Wisconsin;  viz.,  that  the  yeas  and  nays  should  be 
taken  on  all  committee  proceedings,  thereby  showing  how  each 
member  stood  on  the  subjects  referred  to  committees,  but 
which  did  not  reach  a  vote  on  a  bill. 

The  constitutions  of  all  states  save  Oregon  require  that  the 
journal  shall  be  published,  although  in  one  state  it  need  only 
be  published  when  requested  by  one-fifth  of  the  members.  In 
eighteen  states,  however,  such  parts  as  may  require  secrecy 
may  be  excepted.^  Furthermore,  some  of  the  state  constitu- 
tions prescribe  that  the  legislature  shall  provide  for  a  speedy 
pubHcation  of  all  statutes.^ 

302.  Sessions  Open  to  Public 

Responsibility  for  the  acts  of  members  of  the  legislature 
is  still  further  guaranteed  by  constitutional  provisions  requir- 
ing that  the  sessions  must  be  open  to  the  pubHc,  except  when 
occasions  arise  which  in  the  opinion  of  the  house  require  se- 
crecy.'* Secrecy  of  proceedings  was  one  of  the  original  privileges 
of  Parliament,  and  it  was  only  after  a  long  struggle  that  the 
right  of  the  public  to  know  what  was  going  on  in  ParHament 
was  recognized.^  The  colonial  legislature  naturally  followed 
the  English  practice;  but  the  first  constitutions  of  Pennsyl- 
vania and  New  York  expressly  provided  that  each  house  shall 
sit  with  open  doors  except  where  the  public  welfare  required 

1  Stimson,  F.  J.,  Federal  and  Stale  Consl'itulions,  sec.  275,  p.  238. 

2  Stimson,  F.  J.,  Federal  and  Slate  Constitutions,  sec.  275,  p.  238. 
'  N.  Y.  Const.,  1894,  art.  VI,  sec.  21. 

*  Stimson,  F.  J.,  Federal  and  State  Constitutions,  sec.  274,  p.  237. 
^  Taswell-Langmead,  T.  P.,  English  Constitutional  History,  pp.  579-87. 
26 


386  Responsibility  of  Legislators  [§302 

secrecy.^  A  slight  exception  to  this  rule  occurred  when  the  Sen- 
ate of  the  United  States  held  its  legislative  as  well  as  executive 
sittings  with  closed  doors  until  the  second  session  of  the  third 
Congress,  with  the  single  exception  of  the  discussion  of  the 
contested  election  of  Gallatin  as  senator  from  Pennsylvania, 
during  which  discussion  the  galleries  were  opened  by  a  special 
order  of  the  Senate.^ 

1  Schouler,  James,  Constitutional  Studies,  p.  56. 

2  Annals  of  Congress,  ist  Congress  (1789-1791),  vol.  i,  p.  16  (Gales  and 
Seaton,  Washington,  1834). 


CHAPTER  XXIX 
RESTRAINT  ON  LEGISLATORS  BY  BILLS  OF  RIGHTS 

303.  References 

Bibliography:  Channing,  Hart  and  Turner,  Guide  (191 2),  §§  159,  164; 
A.  B.  Hart,  Manual  (1908),  §§99,  100,  150,  155,  177,  187,  192,  201;  A.  B. 
Hart,  Actual  Government  (rev.  ed.,  1908),  §  7;  E.  McClain,  Constitutional 
Law  (rev.  ed.,  1910),  §§  192,  197,  203,  206,  211. 

Bills  of  Rights.  —  Historical  Discussions:  S.  H.  Cobb,  Rise  of  Reli- 
gious Liberty  in  America  (1902) ;  W.  T.  Thom,  Struggle  for  Religious  Freedom 
in  Virginia  (Johns  Hopkins  University,  Studies,  XVIII,  Nos.  x,  xi,  xii); 
G.  Jellinek,  The  Declaration  of  the  Rights  of  Man  (Farrand's  trans.,  1901); 
M.  Farrand,  The  Delaware  Bill  of  Rights  (Am.  Hist.  Rev.,  Ill,  641-649); 
C.  E.  Merriam,  American  Political  Theories  (1903),  117;  F.  J.  Stimson, 
Popular  Law  Making  (1911),  chs.  xiii,  xiv;  J.  K.  Hosmer,  Anglo-Saxon 
Freedom  (1890).  Constitutional  Discussions:  T.  M.  Cooley,  Constitutional 
Limitations  (1903),  chs.  ix-xiii;  T.  M.  Coole}',  Constitutional  Law  (1898), 
chs.  iv,  xii-xvi;  J.  Story,  Commentaries  (1891),  §§  146-197,  301,  304,  1843- 
1849,  1870-1874,  1880-1902;  F.  Lieber,  On  Civil  Liberty  and  Self -Government 
(1874),  chs.  vi,  vii;  E.  McClain,  Constitutional  Law  (rev.  ed.,  1901),  §§  198- 
205,  212-216,  218,  219,  227-243;  J.  W.  Burgess,  Political  Science  (1890), 
I,  174-252;   J.  B.  Thayer,  Cases  on  Constitutional  Law  (1895),  I,  1-47. 

Constitutional  Limitations  upon  Legislators:  F.  J.  Stimson,  Federal 
and  State  Constitutions  (1908),  §395;  C.  A.  Beard,  American  Government 
and  Politics  (1910),  ch.  xxv;  P.  S.  Reinsch,  Legislatures  and  Legisla- 
tive Methods  (1907),  ch.  iv;  J.  Bryce,  American  Commonwealth  (rev.  ed., 
1910),  ch.  xlv;   T.  M.  Cooley,  Constitutional  Limitations  (1903),  ch.  v. 

304.   Doctrine  of  Inalienable  Rights 

Perhaps  on  no  question  did  the  framers  of  our  constitutions 
express  greater  concern  than  that  which  relates  to  certain  so- 
called  natural  or  inherent  rights,  such  as  the  right  to  life,  lib- 
erty, and  property.  These  were  assumed  to  be  possessed  by 
all  citizens  in  such  manner  that  governmental  agents  could  not 
be  permitted  to  interfere.  While  the  doctrine  of  inalienable 
rights  has  a  very  definite  meaning  when  applied  to  monarch- 
ical government,  the  phraseology  is  not  adapted  to  popular 


388  Restraint  on  Legislators  [§305 

government.  All  that  the  doctrine  can  mean  vmder  our  form 
of  political  organization  is  that  the  popular  sovereign,  organ- 
ized citizenship,  has  chosen  to  retain  certain  rights  not  dele- 
gated to  the  government.  In  the  enumeration  of  these  rights 
the  agents  of  government,  against  whom  the  inhibition  is  laid, 
are  rarely  specified.  Legislative,  executive,  or  judicial  agents 
are  thus  doubtless  included,  but  by  impUcation  practically  all 
such  rights  are  inhibitive  against  the  exercise  of  legislative 
power. 

305.   Enumeration  of  Natural  Rights 

The  limitations  upon  legislative  power  appear  in  the  orig- 
inal state  constitutions  in  the  form  of  a  bill  of  rights,  and  later 
among  the  first  ten  amendments  to  the  federal  constitution. 
They  reappear  again  in  practically  all  of  the  constitutions  of  the 
new  states.  These  rights,  which  we  may  call  unalienated  — 
rights  of  all  citizens  as  expressed  in  our  written  constitutions  — 
were  by  no  means  new,  for  they  had  been  gradually  evolved 
in  England.  Some  of  them  date  back  to  Magna  Charta  as  a 
protest  against  the  abuse  of  power  by  the  Crown.  With  the 
establishment  of  parliamentary  rule,  however,  they  in  effect 
apply  equally  against  acts  of  the  Parliament,  since  any  attempt 
to  pass  legislation  which  would  not  recognize  the  bill  of  rights 
would  result  in  an  overthrow  of  the  party  responsible. 

Most  of  the  state  constitutions  abound  in  such  general  state- 
ments as  these:  "All  men  are  born  equally  free  and  independ- 
ent," or  they  are  "by  nature  free  and  independent";  they  are 
"equal  before  the  law"  and  "laws  should  be  made  for  the  good 
of  the  whole";  they  have  a  "natural  right  to  enjoy  and  defend 
life,  and  Hberty,  and  to  the  pursuit  of  happiness";  they  have  "a 
natural  right  to  acquire,  possess,  and  protect  property  or  the 
fruits  of  their  own  labor";  the  legislature  "shall  not  grant  any 
special  privileges  or  immunities  to  any  citizen  or  citizens"; 
"no  hereditary  distinctions,  such  as  ofiices,  emoluments,  or 
titles  of  nobility,  shall  be  granted."  ^ 

1  Stimson,  F.  J.,  Federal  and  State  Constitutions,  pp.  127-30. 


§§  3o6, 307, 308]  Free  Speech  389 


306.   Social  Status  of  Citizens 

These  general  principles  of  natural  rights  are  usually  fol- 
lowed by  an  enumeration  of  more  specific  rights.  Ten  state 
constitutions  declare  that  certain  rights  are  excepted  from  the 
general  powers  of  government  and  shall  forever  remain  invio- 
late as  a  protection  against  the  powers  delegated  to  the 
legislature  by  the  constitution.^  Among  these  is  equality 
in  the  social  status  of  citizens.  One  state  declares  that  the 
social  status  of  citizens  shall  never  be  the  subject  of  legisla- 
tion; others  forbid  the  enactment  of  any  laws  affecting  the  polit- 
ical rights  of  citizens  on  the  ground  of  sex,  race,  or  color;  others 
forbid  any  educational  or  occupational  discriminations  on 
account  of  race  or  sex;  while  still  others  declare  that  the  legis- 
lature shall  never  create  by  law  any  distinction  between  the 
rights  of  men  and  women  in  the  acquisition,  enjoyment,  and 
disposal  of  property,  or  in  the  control  over  children.^ 

307.  Religious  Freedom 

Practically  all  of  the  state  constitutions  protect  religious 
freedom  against  legislative  interference,  usually  by  providing 
that  no  law  ought  to  control  or  interfere  with  the  rights  of 
conscience  in  matters  of  religion;  and  that  the  legislature  shall 
appropriate  no  money  for  sectarian  or  denominational  schools. 
Some  slight  limitations  upon  the  abuse  of  this  freedom  appear 
in  several  states,  such  as,  that  this  freedom  shall  not  excuse 
acts  of  licentiousness  in  the  form  of  polygamy  or  bigamy,  or 
work  on  the  Lord's  Day.^ 

308.  Free  Speech,  Free  Press  and  Assembly 

Many  of  these  inhibitions  have  already  been  discussed  at 
length.  In  this  chapter  dealing  with  the  guarantees  of  citizen- 
ship, special  emphasis  is  laid  on  free  speech,  free  press,  and 

*  Stimson,  F.  J.,  Federal  and  Stale  Constitutions,  sec.  4,  p.  124. 
^  Stimson,  F.  J.,  Federal  and  Slate  Constitutions,  pp.  131-136. 
'  Stimson,  F.  J.,  Federal  and  Slate  Constitutions,  pp.  137-144. 


390  Restraint  on  Legislators       [§§309,310 

freedom  to  assemble.  In  nearly  all  of  the  states  the  constitu- 
tion specifically  states  that  the  right  of  freedom  of  speech 
and  press  cannot  be  abridged;  two  states  guarantee  freedom 
of  speech  only;  eight  states  only  omit  this  guarantee.  The 
constitution  of  West  Virginia,  however,  provides  that  the  legis- 
lature may  restrain  the  sale  of  obscene  books,  and  that  they 
may  still  further  pro\'ide  for  the  punishment  of  libel  and  defa- 
mation.^ In  all  of  the  states  save  Minnesota  and  Virginia  the 
constitutions  provide  that  the  people  have  the  right  to  assemble 
peaceably,  consult  together,  petition  the  legislature  for  the 
redress  of  grievances,  and  instruct  their  representatives.^ 

309.  Right  to  Bear  Anns 

The  right  to  bear  arms  is  guaranteed  by  most  of  the  states, 
but  in  four  states  the  legislature  may  prescribe  the  manner 
in  which  arms  are  to  be  borne,  while  eight  states  empower  the 
legislature  to  forbid  the  carrying  of  concealed  weapons.'^  In 
practically  all  jurisdictions,  however,  the  restrictions  placed  on 
carr3dng  weapons  is  or  may  be  made  as  effective  as  in  the  eight. 

310.   Rights  Guaranteed  by  the  Federal  Constitution 

At  the  time  of  the  adoption  of  the  federal  constitution  there 
was  manifested  a  distinct  revolt  against  the  enumeration  in  the 
constitution  of  a  long  list  of  natural  rights.  In  fact  the  con- 
stitution as  originally  adopted  contained  no  such  enumeration. 
The  Federalist,  which  set  forth  the  chief  arguments  used  by 
those  favoring  the  adoption  of  the  constitution,  declares  that 
the  preamble  of  the  constitution  is  "a  better  recognition  of  the 
popular  rights,  than  volumes  of  those  aphorisms,  which  make  a 
principal  figure  in  several  of  our  state  bills  of  rights,  and  which 
would  sound  better  in  a  treatise  on  ethics,  than  in  a  constitu- 
tion of  government."  ■*    The  authors  of  the  Federalist  con- 

1  Stimson,  F.  J.,  Federal  and  State  Constitutions,  p.  145. 
^  Stimson,  F.  J.,  Federal  and  State  Constitutions,  pp.  147,  148. 
'  Stimson,  F.  J.,  Federal  and  State  Constitutions,  p.  146. 
*  Merriam,  C.  E.,  History  oj  American  Political  Theories,  pp.  117,  118; 
Federalist,  No.  84. 


k 


§310]  Federal  Guarantees  391 

tended  that  the  people  had  not  surrendered  any  of  these  rights 
and  hence  there  was  no  need  of  any  reservation.  The  best 
guarantee  of  popular  rights,  it  was  claimed,  was  in  a  govern- 
ment which  derives  its  powers  from  and  is  responsible  to  the 
people  through  its  elected  ofl&cers.  The  whole  tenor  of  the 
Federalist  was  in  effect  the  doctrine  now  generally  accepted 
that  there  is  no  such  thing  as  natural  rights  in  the  form  of  lib- 
erty of  person  or  acquisition  of  property  which  is  not  first  guar- 
anteed by  government.  The  popular  belief  in  such  restrictions 
upon  the  government,  the  result  of  centuries  of  conflict  with 
absolutism,  however,  forced  the  adoption  of  the  first  ten  amend- 
ments which  enumerated  many  of  the  so-called  natural  rights. 
These  amendments  forbade  Congress,  either  expressly  or  through 
implication,  to  pass  any  laws  curtailing  the  freedom  of  religion, 
freedom  of  speech,  free  press,  right  of  assembly  and  petition, 
the  right  to  bear  arms,  freedom  from  unreasonable  search, 
right  to  a  jury  trial,  and  other  judicial  safeguards,  such  as  ex- 
cessive bail,  being  deprived  of  life,  liberty,  or  property  without 
due  process  of  law,  or  to  quarter  soldiers  in  any  house,  in  time 
of  peace  without  the  consent  of  the  owner,  or  in  time  of  war, 
except  in  a  manner  prescribed  by  law. 

There  are  still  other  inhibitions  placed  upon  the  federal  legis- 
lature which  are  not  found  in  the  first  ten  amendments.  Con- 
gress exercises  delegated  powers  which  are  expressly  declared 
in  the  constitution,  and  the  tenth  amendment  definitely  pro- 
vides that  "powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved 
to  the  States  respectively  or  to  the  people."  Even  more  direct 
inhibitions  appear  elsewhere  in  the  constitution.  Congress 
cannot  suspend  the  writ  of  habeas  corpus  except  in  certain 
cases,  cannot  pass  any  bill  of  attainder  or  ex  post  facto  laws, 
levy  any  tax  or  duty  upon  exports  or  interstate  commerce,  levy 
a  direct  or  capitation  tax  except  in  proportion  to  the  census, 
or  grant  any  titles  of  nobility.  It  is  readily  seen  that  several 
of  these  prohibitions  properly  belong  in  the  bill  of  rights.^ 
*  Constitution  of  the  United  States,  art.  I,  sec.  9. 


392  Restraint  on  Legislators       [§§311,312 


311.   Limitations  on  State  Legislatures  in  the  Federal  Constitution 

The  federal  constitution  likewise  places  certain  limitations 
upon  the  legislature  of  the  respective  states.  No  state  legis- 
lature is  allowed  to  coin  money,  emit  bills  of  credit,  make  any- 
thing but  gold  and  silver  coin  a  tender  in  payment  of  debts, 
or  pass  any  law  impairing  the  obligation  of  contracts.  No 
state  is  allowed  to  enter  into  any  treaty,  alliance,  or  confedera- 
tion; grant  letters  of  marque  and  reprisal;  levy  imports  or 
duties  upon  imports  or  exports  with  slight  exceptions;  enter 
into  any  compact  with  another  state  or  foreign  power,  keep 
troops  or  ships  of  war  in  time  of  peace,  or  engage  in  war  unless 
actually  invaded  or  in  such  imminent  danger  as  will  not  admit 
of  delay. 

312.  Limitations  on  State  Legislatures  in  State  Constitutions 

The  inhibitions  placed  upon  the  state  legislature  by  the  fed- 
eral constitution  and  the  limitations  previously  enumerated 
which  belong  properly  to  the  bill  of  rights  of  the  state  consti- 
tution by  no  means  exhaust  the  constitutional  limitations  of 
the  legislature.  These  restrictions  are  in  striking  contrast 
with  the  early  state  constitutions  which  placed  few  restrictions 
upon  the  lawmaking  power.  In  the  contest  with  England 
during  the  colonial  period,  the  assemblies  had  always  cham- 
pioned the  cause  of  the  people  against  the  aggressions  of  the 
Crown  acting  through  the  royal  governor.  This  accounts 
historically  for  the  implicit  confidence  placed  in  the  legislature 
by  the  early  state  constitutions.  The  attitude  of  mind  is  well 
illustrated  by  the  Massachusetts  constitution  adopted  in  1780; 
this  places  no  limitations  upon  the  legislature  save  the  general 
ones  contained  in  the  bill  of  rights.  It  merely  provides  that  the 
General  Court  shall  enact  "all  manner  of  wholesome  and  reason- 
able law  as  they  may  judge  for  the  benefit  and  welfare  of  this 
State."  ^ 

^  Stimson,  F.  J.,  Federal  and  Stale  Conslilulions,  p.  70. 


§313]  Distrust  of  Legislatures  393 

313.  Growing  Distrust  of  State  Legislatures 

The  distrust  of  the  state  legislature  began  with  the  second 
quarter  of  the  nineteenth  century  when  the  executive  and  judi- 
cial departments  were  made  independent  of  the  legislature 
through  the  elective  principle  employed  in  the  selection  of  execu- 
tive and  judicial  agents.  The  constitutions  formed  from  that 
time  on  abound  in  an  elaborate  enumeration  of  the  things  the 
legislature  may  do  and  especially  of  the  things  the  legislature 
may  not  do.^  For  instance  the  constitution  of  Alabama  of  1901 
contains  nearly  one  hundred  sections  relating  to  legislation 
permitted  or  denied.^  The  most  general  restriction  is  one  relat- 
ing to  provisions  against  the  enactment  of  special  or  local  laws. 
Stimson  states  that  the  most  concise  classification  that  he 
has  been  able  to  make  of  such  provisions  "mounts  up  to  one 
hundred  and  twenty  matters  upon  which  special  legislation  is 
forbidden  throughout  the  states  and  territories.  The  most 
important  of  these  relate  to  financial  questions,^  rights  pertain- 
ing to  persons,  changing  the  laws  of  descent,  divorce,  labor, 
officers,  judicial  proceedings,  enactment  of  municipal  laws, 
the  sale  of  public  lands,  monopoUes,  corporations,  railroads, 
banking  laws,  etc* 

*  Stimson,  F.  J.,  Federal  and  State  Constitutions,  p.  70. 

*  Stimson,  F.  J.,  Federal  and  Slate  Constitutions,  sec.  395,  p.  293. 
'  Stimson,  F.  J.,  Federal  and  State  Constitutions,  p.  70. 

*  Stimson,  F.  J.,  Federal  and  State  Constitutions,  sec.  395,  p.  293. 


CHAPTER  XXX 

RESPONSIBILITY  OF  THE  EXECUTIVE  TO  THE  WILL  OF 
THE    PEOPLE 

314.  References 

Bibliography:  A.  B.  Hart,  Manual  (1908),  §§  105,  106,  109,  no;  Chan- 
ning,  Hart  and  Turner,  Guide  (1912),  §§  130,  134,  135,  137,  138,  139,  159, 
164,  173;  Brookings  and  Ringwalt,  Briefs  for  Debate  (1896),  No.  12;  E.  S. 
Bradford,  Commission  Government  in  American  Cities  (1911),  343-353- 

Principles  Governing  Selection  of  Administrative  Officers:  See 
ch.  xxvi. 

Election  of  President  and  Vice-President:  E.  Stanwood,  A  History  of 
the  Presidency,  (rev.'ed.,  1912),  ch.  i;  J.  H.  Dougherty,  The  Electoral  System  of 
the  United  States  (1906),  chs.  x-xiii;  J.  Bryxe,  American  Commonwealth  (rev. 
ed.,  1910),  I,  ch.  viii;  A.  B.  Hart,  Actual  Govertiment  (rev.  ed.,  1908),  §§  121, 
122;  R.  L.  Ashley,  The  American  Federal  State  (1902),  ch.  xiv;  B.  A.  Hins- 
dale, American  Government  (1895),  ch.  xx\'iii;  C.  E.  Merriam,  American 
Political  Theories  (1903),  196,  icr?;  The  Federalist,  Nos.  67,  68;  A.  B.  Hart, 
Practical  Essays  (1893),  No.  3;  J.  W.  Gamer,  Shall  the  Electoral  College  be 
Abolished?  {Independent,  Jan.  27,  1910);  J.  Story,  Commentaries  (5th  ed., 
1891),  §§  1456,  1457;  J.  Kent,  Commentaries  (14th  ed.,  1896),  ch.  xii;  J.  R. 
Tucker,  Constitution  (1899),  ch.  xii;  J.  I.  C.  Hare,  Constitutional  Law  (1889), 
ch.  xiv;  E.  McClain,  Constitutional  Law  (1899),  §40. 

The  Election  of  Governor  and  Admlnistrative  Officers:  P.  L. 
Kaye,  Colonial  Executive  prior  to  the  Restoration  (1900);  E.  B.  Greene, 
Provi7icial  Governor  (1898);  J.  H.  Finley,  Executive  (1908);  C.  E.  Hughes, 
Conditions  of  Progress  in  Democratic  Governtncnt  (1910),  55,  56;  J.  Bryce, 
American  Cofnmonwealth  (rev.  ed.,  1910),  I,  ch.  xii;  E.  McClain,  Constitu- 
tional Law  (rev.  ed.,  1910),  §39;  R.  L.  Ashley,  American  Federal  State 
(1902),  §§430-433- 

Selection  of  City  Administrative  Officers:  J.  A.  Fairlie,  Munic- 
ipal Administration  (1901),  chs.  v,  xviii;  F.  J.  Goochiovv,  Municipal  Gov- 
ernment (1909),  ch.  ix;  E.  S.  Bradford,  Commission  Government  in  American 
Cities  (1911),  chs.  xiv,  xv;  F.  J.  Goodnow,  Comparative  Administrative 
Law  (1893),  I,  102-106. 

315.   Limited  Authority  of  the  Executive  over  Legislature 
In   a  previous  chapter  Professor  Merriam  was  quoted  as 
stating  the  general  principle   that  officers  who  determine  pol- 
icy should  be  elected  directly  by  the  people.     Executive  and 


§  3i6]  Selection  of  Governors  395 

administrative  officers  may  be  said  to  be  responsible  for  deter- 
mining policies  in  a  limited  manner  only,  save  the  chief  execu- 
tives of  federal,  state,  and  municipal  governments.  The 
President,  governors,  and  mayors  exercise  direct  guidance  in  the 
enactment  of  public  poUcies  into  legislation,  through  their  power 
of  sending  messages  to  the  legislative  bodies  describing  the  gen- 
eral condition  of  pubUc  affairs  and  pointing  out  desirable  leg- 
islation; through  their  power  to  veto  objectionable  bills;  and 
through  their  right  to  call  the  legislature  in  extra  session  to  deal 
with  pubHc  needs  left  unattended  by  the  regular  session  or 
with  questions  of  importance  which  have  arisen  since  the  ad- 
journment. In  many  large  cities  the  mayor  and  several  of  the 
elected  administrative  officers  constitute  a  board  of  estimates 
and  apportionment  and  thus  comprise  the  chief  legislative  body 
in  financial  matters.  In  many  of  the  smaller  cities  the  mayor 
acts  as  presiding  officer  of  the  legislative  branch.  Likewise 
imder  the  commission  system  of  government  the  commissioners 
exercise  legislative  as  well  as  administrati\e  functions.  At  the 
present  time  all  of  the  chief  executives  of  the  states  and  munic- 
ipaUties  are  chosen  directly  by  the  voters,  and  although  the 
President  is  nominally  chosen  by  electors,  he  is  in  all  but  form 
voted  for  directly  by  the  people. 

316.  Historical  Methods  of  Selecting  Governors 

This  method  of  selecting  the  chief  executive  was  recognized 
only  in  a  limited  manner  in  the  colonies  and  early  states.  The 
governor  was  chosen  by  the  freeholders  of  the  colonies  of  Con- 
necticut and  Rhode  Island,  and  in  Massachusetts  Bay  till  1684 
and  in  Plymouth  until  union  with  Massachusetts  in  1691,  after 
which  the  governor  was  made  appointive.  In  the  royal  and 
proprietary  colonies,  however,  the  governor  was  regularly  ap- 
pointed by  the  Crown  or  the  proprietor.  In  the  new  state 
constitutions  all  of  the  New  England  colonies  and  New  York 
provided  an  elective  executive;  while  the  remaining  states  gave 
the  appointment  to  the  state  legislature.  But  even  in  the  states 
where  the  governor  was  elective,  his  power  was  slender;  he  had 


396  Responsibility  of  Executive  [§  317 

little  patronage,  no  veto  power,  save  in  Massachusetts,  and 
was  practically  limited  to  the  position  of  chief  military  officer.^ 
The  decision  of  the  Federal  Convention  of  1787  to  make  the 
executive  independent  of  the  legislature  soon  made  an  impress 
upon  the  states.  Pennsylvania,  Vermont,  Delaware,  and  Tennes- 
see, prior  to  1800,  estabhshed  the  elective  principle;  Kentucky 
between  1792  and  1799  experimented  with  the  federal  expedient 
of  choice  by  an  electoral  college  and  then  transferred  the  power 
to  the  people;  Ohio  followed  the  example  in  1802;  and  Louisiana 
established  a  popular  vote,  but  gave  the  legislature  power  to 
select  from  the  two  candidates  receiving  the  highest  popular 
vote.  In  all  the  new  constitutions  and  old  instruments  revised, 
during  the  first  quarter  of  the  nineteenth  century,  provision 
was  made  for  an  elective  governor  with  but  one  exception.  All 
of  this  is  in  harmony  with  the  principle  that  ofl&cers  who 
determine  policy  should  be  chosen  directly  by  the  voters. 

317.   Change  of  Methods  of  Selecting  State  Executive  Officers 

The  movement  to  make  executive  officers  elective  did  not 
stop  at  this  point:  it  led  to  the  elective  principle  for  purely 
administrative  ofiicers,  as  a  result  of  the  theory  that  practically 
all  important  officers  should  be  elected  by  the  people.  In  the 
early  constitutions  they  were  chosen  by  the  legislatures,  but 
disappointing  results  caused  the  new  democracy  to  distrust 
the  legislature.  To  cure  what  were  regarded  as  then  existing 
evils  the  voters  were  given  the  choice  of  administrative  officers, 
such  as  secretary  of  state,  treasurer,  auditor,  superintendent 
of  public  education,  and  even  state  engineer  and  surveyor, 
etc."  This  policy  was  not  everywhere  recognized  in  the  same 
degree,  but  in  general  it  may  be  said  that  it  spread  to  all  of 
the  states,  old  as  well  as  new. 

Inasmuch  as  most  of  the  evils  which  election  was  expected 
to  cure  still  continue,  the  people  now  look  for  new  remedies, 

1  Schouler,  James,  Constitutional  Studies,  pp.  268,  269. 

2  Merriam,  C.  E.,  American  Political  Theories,  pp.  196,  197;  Schouler, 
James,  Constitutional  Studies,  pp.  182,  282. 


§3i8]  Choice  of  President  397 

and  a  protest  has  gone  up  against  this  extension  of  popular 
elections.  There  is  a  growing  feeling  that  these  administrative 
oflScers  of  the  state,  all  similar  in  character  to  those  who  in  the 
federal  government  are  appointed  by  and  responsible  to  the 
President,  should  be  made  directly  responsible  to  the  chief 
executive.  Governor  Hughes  of  New  York,  in  1909,  presented 
this  situation  as  follows:  "Accountability  exists  only  in  form, 
if  the  attention  of  the  people  cannot  be  concentrated  and  their 
action  pointed  to  the  desired  result.  The  distribution  of  offi- 
cial powers  among  a  number  of  co-ordinate  administrative  offi- 
cers, each  elective,  has  the  result  that  there  is  confusion  as  to 
incidence  of  responsibility;  and  frequently  in  popular  under- 
standing is  unjustly  placed."  The  governor  is  charged  with 
the  executive  administration,  and  yet  through  the  elective 
principle  implying  independence  of  action,  he  is  denied  any  real 
supervision.  The  conclusion  is  that  the  administrative  ofiicers 
of  states,  like  those  of  the  nation,  should  be  appointed  by  the 
governor,  and  thus  enable  the  people  to  place  responsibility 
for  inefficiency  or  maladministration  upon  one  person.^ 

318.   Method  of  Choice  of  President  of  the  United  States 

The  independence  of  the  executive  department  of  the  legis- 
lative body,  though  recognized  in  the  federal  government  from 
the  beginning,  was  not  adopted  without  a  severe  struggle.  In 
the  early  stages  of  the  Convention  of  1787,  appointment  of  the 
president  by  Congress  was  adopted  by  a  unanimous  vote,^ 
and  it  was  not  until  such  able  leaders  as  James  Wilson  and 
Gouverneur  Morris  pointed  out  the  dangers  of  such  dependence 
that  some  other  method  of  selection  was  sought.  Both  Wil- 
son and  Morris  argued  for  popular  election;  but  the  general 
distrust  of  democracy  then  prevailing  defeated  this  plan.  After 
several  other  plans  were  considered,  such  as  appointment  by 
the  state  executives,  selection  by  the  Senate,  etc.,  the  dele- 
gates finally  agreed  upon  appointment  by  a  college  of  electors 

1  Hughes,  C.  E.,  Conditions  of  Progress  in  Democratic  Government,  pp.  55,  56. 

2  Madison,  Journal  of  Constitutional  Convention  (Scott  ed.),  pp.  365,  367. 


398  Responsibility  of  Executive  [§  319 

who  were  to  be  chosen  in  a  manner  designated  by  the  legisla- 
ture in  the  respective  states.^  But  this  method  did  not  insure 
any  imiformity  in  the  method  of  choice  of  electors,  for  the  state 
legislatiire  might  provide  for  selection,  by  the  governor,  by 
the  courts,  by  the  state  legislature,  by  the  people,  or  by  any 
other  conceivable  method.  Only  two  methods,  however,  were 
adopted.  In  the  first  election  of  electors  in  1788-89  about  one- 
half  of  the  states  pro\dded  for  election  by  the  people,  while  the 
remaining  states  preferred  appointment  by  the  state  legislature. 

319.  Methods  of  Choice  of  Electors  of  the  President 
Election  by  the  state  legislature  brought  up  the  same  ques- 
tion which  had  already  arisen  over  the  appointment  of  United 
States  Senators;  viz.,  whether  the  selection  should  be  made  by 
joint  or  concurrent  vote  of  the  two  houses.  In  a  number  of  the 
states  the  Senate  held  out  for  a  concurrent  method,  and  dead- 
locks in  New  York  State  prevented  the  choice  of  electors  by 
that  state  in  time  to  vote  for  the  first  President.  By  1832,  how- 
ever, all  of  the  states  save  South  Carolina  had  adopted  the 
method  of  popular  election.  But  popular  election  also  might 
take  on  either  of  the  forms —  election  by  districts  or  election 
by  the  state  at  large.  As  elections  passed  under  the  control  of 
poUtical  parties  it  was  pointed  out  that  district  elections  pre- 
vented the  dominant  party  within  the  state  from  carrying  all 
the  electoral  vote  thereof;  and  in  time  all  of  the  states  provided 
for  choice  of  electors  through  popular  vote  by  the  state  at 
large.2  Thus  fell  in  rums  the  plan  of  the  Federal  Convention 
that  the  electors  should  constitute  a  body  of  uncommitted  wise 
men  who  should  exercise  a  superior  and  independent  judgment 
in  the  selection  of  an  executive;  for  sLoce  1792  the  electors 
have  commonly  been  party  counters  who  register  the  will  of 
the  party  managers  who  secured  their  nomination. 
This  method  prevailed  till  191 2;  in  all  save  form  there  is  a 

1  Madison, /o2ir«a/  of  Constitutional  Convention  (Scott  ed.)  pp.  365,  367,707. 
^  Luetscher,  G.  D.,  Early  Political  Machinery  in  the   United  States,  pp. 
111-114.  » 


§§320,321]  Elective  Mayoralty  399 

real  popular  election  of  President  and  Vice-President.  Popular 
interest  and  control  apply  to  the  national  nominating  con- 
ventions which  select  the  candidates  and  to  the  general  elec- 
tion; not  to  the  selection  of  electors,  as  was  originally  planned. 
The  methods  adopted  in  the  different  states  to  enforce  the  pop- 
ular will  in  the  selection  of  delegates  to  these  conventions  have 
been  discussed  in  previous  chapters.^ 

320.  Election  of  Municipal  Executive  in  Early  Mtinicipalities 

At  the  present  time  the  mayor,  and  frequently  other  impor- 
tant administrative  officers  of  municipalities,  are  chosen  by 
the  electors.  Such,  however,  was  not  the  case  in  the  colonial 
borough  charters,  under  which  the  mayor  and  administrative 
officers  were  appointed.^  The  colonial  charters  of  New  York 
City  provided  for  a  mayor,  sheriff,  recorder,  town  clerk,  and 
clerk  of  the  market.  By  the  charter  of  1 730  the  electors  of  each 
ward  were  authorized  to  elect  two  assessors,  one  collector,  and 
four  constables,^  but  this  was  the  only  concession  to  the  elec- 
tive principle  in  the  selection  of  administrative  officers  in  the 
colonial  period. 

The  revolution  did  not  introduce  any  material  change,  save 
that  appointment  by  the  governor  was  transferred  to  some 
other  body  —  in  some  states  the  governor,  in  others  the 
council,''  in  New  York  State  the  Council  of  Appointment  until 
1 82 1,  when  it  was  transferred  to  the  city  council.^  In  some 
Connecticut  cities  the  mayor  was  chosen  by  the  people  after 
the  Revolution ;  but  they  held  their  offices  at  the  pleasure  of  the 
General  Assembly,  which  meant  practically  life  tenure. 

321.   Elective  Mayoralty 

The  selection  of  the  mayor  by  popular  vote  began  to  make 
headway  in  the  third  decade  of  the  nineteenth  century.     The 

1  See  chapters,  XV,  XVII. 

'  Fairlie,  J.  A.,  Municipal  Administralion,  p.  76. 

*  Ash,  W.,  Greater  Nrw  York  Charter  (igo6),  pp.  1184,  1187. 

*  Fairlie,  J.  A.,  Municipal  Administration,  pp.  79,  80. 
^  Kent,  James,  City  Charters  (N.  Y.,  1851),  p.  218. 


400  Responsibility  of  Executive  [§  322 

j&rst  charters  providing  for  an  elective  mayor  were  those  of 
Boston  and  St.  Louis  in  1822,  Detroit  in  1824,  and  Philadel- 
phia in  1826.  In  the  following  decade  the  charters  of  Balti- 
more (1833),  New  York  (1834),  Cleveland  (1836),  and  Chicago 
(1837)  established  the  elective  principle.  From  this  time  on, 
popular  election  of  the  mayor  became  the  prevailing  system.^ 
In  fact  the  movement  did  not  stop  at  this  point,  for  many  of 
the  administrative  officers  as  well  were  made  elective.  The 
evils  of  this  extension  in  cities  where  the  functions  of  govern- 
mental agents  are  largely  administrative  were  soon  recognized; 
and  in  recent  decades  most  of  these  have  agam  become  appoint- 
ive, but  by  the  mayor  instead  of  the  council.  This  change 
was  easily  made,  for  municipalities  are  the  creatures  of  the 
state  legislature.  The  appointment  of  the  administrative  offi- 
cers is  lodged  either  in  the  mayor,  the  council,  or  m  the  mayor 
with  the  consent  of  the  council,  or  of  at  least  one  house  where 
the  bi-cameral  system  is  in  force. 

A  new  form  of  city  government,  however,  bids  fair  to  abol- 
ish the  American  system  of  separation  of  powers  among  the 
three  departments  treated  in  earlier  chapters  of  this  work. 
The  Commission  form  of  government  in  January,  19 13,  was  in 
operation  in  one  hundred  and  ninety-four  cities.  The  charters 
provide  for  the  election  of  commissioners,  usually  five  in  num- 
ber, who  are  designated  as  heads  of  departments,  but  who 
exercise  legislative  as  well  as  executive  powers.  One  of  these 
commissioners  is  usually  designated  as  mayor  in  charge  of  the 
department  of  public  safety,  but  as  a  matter  of  fact  he  is  clothed 
with  little  more  power  than  any  other  commissioner. 

322.   Petition  of  Executive  Officers 

The  right  of  the  people  to  petition  and  remonstrate  to  public 
officials  has  been  discussed  in  the  previous  chapter  and  applies 
with  equal  force  to  executive  officers.  In  fact  in  early  English 
history  the  subjects  petitioned  the  King  very  much  more  fre- 
quently than  Parliament.  Finally,  when  James  II  declared 
^  Fairlie,  J.  A.,  Municipal  Administration,  pp.  82-84. 


§323]  Recall  of  Mayors  401 

in  1688  that  the  petition  of  the  seven  bishops  was  libel  and  had 

them  arrested  and  tried,  he  interfered  with  one  of  the  treas- 
ured rights  of  his  subjects.  To  prevent  any  repetition  of  such 
interference,  this  right  was  formally  inserted  in  the  Bill  of 
Rights  in  the  following  form : 

"That  it  is  the  right  of  the  subject  to  petition  the  King, 
and  all  commitments  and  prosecutions  for  such  petition  are 
illegal."  ^  The  colonists  made  extensive  use  of  this  right  as 
Englishmen  m  their  struggle  with  the  English  kings;  and  when 
the  first  state  constitutions  were  formed  it  found  expression  in 
practically  every  state  constitution  and  among  the  first  amend- 
ments of  the  federal  constitution. 

323.  Instances  of  Recall  of  Mayors 

Wherever  the  recall  as  a  method  of  impressing  the  will  of  the 
people  upon  legislative  agents  has  been  adopted  it  also  extends 
to  elective  executive  agents.  The  recall  of  executive  agents, 
as  in  the  case  of  legislative  agents,  has  been  rare  —  up  to  19 12 
only  two  instances,  one  in  Los  Angeles  and  one  in  Seattle,  Wash. 

In  the  municipal  election  of  Los  Angeles  in  1906  a  mayor 
was  chosen  who,  like  many  men  in  public  ofiice,  had  not  the 
experience  to  cope  with  actual  political  conditions.  His 
appointments  were  of  a  very  low  order,  and  it  was  charged  that 
the  mayor,  and  especially  the  police  department,  became 
through  their  laxity  and  corruption,  the  protectors  of  vice;  that 
burglary  and  thuggery  were  rampant.  These  conditions  were 
brought  to  the  notice  of  the  people  through  newspaper  attacks 
by  the  city  prosecutor,  and  the  people  reaUzed  that  through 
the  recall  they  had  a  means  to  carry  out  their  will.  Petitions 
were  circulated  and  the  requisite  twenty-five  per  cent  of  the 
voters  was  obtained;  but  before  the  election  the  mayor  resigned, 
his  chief  opponent  was  elected  by  a  small  majority,  and  the 
city  administration  was  placed  upon  a  satisfactory  basis. - 

The  method  was  again  resorted  to  in  Seattle,  Wash.,  in 

1  Cheyney,  E.  P.,  Readings  in  English  History,  p.  546. 
*  National. Municipal  League,  Proceedings,  1909,  pp.  108,  329-33. 
27 


402  Responsibility  of  Executive  [§  323 

February,  191 1,  when  petitions  were  circulated  for  the  recall 
of  the  mayor,  on  grounds  of  (i)  incompetence  and  unfitness; 
(2)  abuse  of  appointive  power  by  selecting  for  political  and  per- 
sonal reasons  men  unfit  for  office;  (3)  refusal  and  neglect  to 
enforce  the  criminal  laws  of  the  city;  (4)  permitting  the  city 
to  become  a  home  and  refuge  for  the  criminal  classes;  (5)  fail- 
ure to  enforce  impartially  the  laws  and  ordinances;  (6)  such 
character  as  makes  his  continuance  in  office  a  menace  to  the 
business  enterprise  and  moral  welfare  of  the  city.^ 

The  accused  mayor  and  his  friends  fought  desperately  to 
have  the  recall  petition  declared  defective,  first,  through  the 
state  courts,  then  through  the  United  States  Circuit  Court,  in 
the  name  of  a  resident  of  another  state  who  held  property  in 
Seattle,  upon  the  ground  that  the  cost  of  an  illegal  election 
would  increase  the  taxes.  The  federal  judge  denied  the  right 
of  the  comptroller  of  Seattle  to  pay  any  election  expenses. 
The  petitioners  at  once  appealed  to  the  United  States  Circuit 
Court  of  Appeals,  where  the  decision  was  reversed,  but  the 
city  was  required  to  put  up  bonds  to  the  extent  of  $15,000  to 
meet  obligations  in  case  the  election  should  for  any  reason  be 
declared  illegal.  At  this  stage  the  mayor  dropped  the  case 
and  the  election  was  held  without  further  protest.  The  result 
was  a  victory  for  decency  and  good  government  through  the 
defeat  of  the  accused  mayor  and  the  election  of  the  candidate 
of  the  petitioners.  Like  the  Los  Angeles  election,  this  recall 
indicated  that  "it  requires  great  provocation  to  render  the 
recall  efficacious,  and  tends  to  disprove  the  statement  that  it 
provides  an  easy  way  for  temporary  passion  to  work  injustice."  ^ 

It  is  interesting  to  note  that  this  former  mayor  was  again 
a  candidate  in  the  regular  election  of  191 1,  and  was  defeated 
by  a  narrow  margin.  This  has  given  rise  to  the  question 
whether  the  corrective  effect  of  the  recall  gives  adequate 
return  for  the  time  and  energy  which  must  be  expended 
in  putting  it  into  practise. 

^  Outlook,  vol.  97,  p.  295.  ^  Outlook,  vol.  97,  p.  375. 


CHAPTER  XXXI 

MEANS    OF    FIXING    THE    RESPONSIBILITY    OF    EXECUTIVE 
AND   ADMINISTRATIVE  OFFICERS 

324.  References 

Bibliography:  E.  McClain,  Constitutional  Law  (rev.  ed.,  1910),  §23; 
A.  B.  Hart,  Manual  (1908),  §  164. 

Citizen  Right  or  Access  to  Records:  The  Lawyers  Reports  Anno- 
tated, XXVII,  82;  American  and  English  Encyclopedia  of  Law  (1892),  XX, 
521,  523;  J.  F.  Dillon,  Municipal  Corporations  (4th  ed.,  1890),  §  848;  F.  J. 
Stimson,  Federal  and  State  Constitutions  (1908),  §§  281,  321. 

Publication  of  Official  Reports:  F.  J.  Stimson,  Federal  and  Slate 
Constitutions  (1908),  §  260. 

Abolition  of  Statutory  Offices:  F.  R.  IVIechem,  Public  Offices  (1890), 
ch.  vii,  §§463-467;   J.  F.  Dillon,  Municipal  Corporations  (1890),  §  231. 

Impeachment  and  Removal  from  Office:  F.  R.  Mechem,  Public 
Offices  (1890),  chs.  xi,  xiii;  F.  J.  Stimson,  Federal  and  State  Constitutions 
(1908),  §§  260-268;  F.  J.  Stimson,  American  Statute  Law  (1910),  §§  260- 
262;  J.  N.  Pomeroy,  Constitutional  Law  (1886),  §§  715,  725,  728;  J.  Story, 
Commentaries  on  the  Constitution  (1891),  §  792;  J.  F.  Dillon,  Municipal 
Corporations  (1890),  §§  240,  241;  The  Lawyers  Reports  Annotated,  XV,  95; 
S.  F.  Miller,  Constitution  of  the  United  States  (1891),  171-213;  H.  C.  Black, 
Constitutional  Law  (2d  ed.,  1897),  §§  82-84;  R.  Foster,  Constitution  of  the 
United  States  (1896),  ch.  xiii;  J.  R.  Tucker,  Constitution  (1899),  §§  198- 
201;   A.  B.  Hart  (rev.  ed.,  1908),  Actual  Government,  §  139. 

Constitutional  Inhibitions  on  Executive  Officers:  F.  J.  Stimson, 
Federal  and  State  Constitutions  (1908),  §312. 

Suspension  of  Habeas  Corpus:  The  Lawyers  Reports  Annotated,  XLV, 
832;  F.  H.  Stimson,  Constitutions,  247,  248;  T.  C.  Spelling,  Injunctions, 
Habeas  Corpus,  etc.  (1901);  E.  McClain,  Constitutional  Law  (rev.  ed.,  1910), 
§§  241-242. 

325.  Rights  of  Inquiry  by  Citizens 
The  right  of  access  to  public  records,  or  of  inquiry  by  cit- 
izens into  the  official  acts  of  the  executive  and  administrative 
agents,  constitutes  one  of  the  most  important  checks  upon  non- 
feasance and  malfeasance  in  office.  Knowledge  of  facts,  free 
speech,  and  free  press,  with  the  means  of  bringing  information 
before  the  judicial  agents,  of  instituting  proceedings  for  injunc- 


404        Fixing  Executive  Responsibility       [§  325 

tion,  mandamus,  quo  warranto,  and  ouster  give  to  citizens, 
when  properly  organized  and  equipped,  powers  which  no  officer 
can  ignore.  Add  to  this  the  powers  of  recall,  and  the  only 
thing  that  stands  in  the  way  of  efficient  citizen  control  over  the 
executive  acts  is  inexcusable  ignorance.  Information  sufficient 
to  give  a  basis  for  intelligent  action  concerning  subjects  so  tech- 
nical and  complex  as  the  business  of  government,  however,  is 
both  difficult  and  expensive  to  obtain.  Few  citizens  single- 
handed  could  attempt  to  become  informed.  This  information 
is  a  matter  for  organized  citizenship  to  supply.  To  make 
organized  citizenship  effective,  however,  the  citizen  must  enjoy 
the  right  of  access  to  public  records.  As  has  been  pointed  out, 
this  right  is  generally  recognized  subject  only  to  slight  restric- 
tions. 

At  common  law  the  rule  was  that  every  person  is  entitled  to 
the  inspection,  by  himself  or  his  agent,  of  public  records,  pro- 
vided he  has  an  interest  therein.  Thus  a  person  is  entitled  to 
the  examination  of  court  records  in  case  he  has  an  interest  in 
a  specific  controversy  for  which  a  certain  docimient  can  furnish 
evidence  or  information.  His  interest  need  not  be  private; 
it  will  be  sufficient  that  he  act  in  such  suit  as  the  representative 
of  the  common  or  public  right. 

Under  the  statutes  of  the  United  States  and  many  states, 
interest  is  no  longer  a  condition  to  the  right  of  inspecting  public 
records.  Any  person  may  examine  public  records  and  take 
memoranda,  subject,  of  course,  to  regulations  regarding  the 
safety  of  records,  decorum  of  person  seeking  information,^  the 
convenience  of  the  office,  etc.  Dillon  holds  ^  "that  in  this 
country,  the  records,  public  books,  and  by-laws  of  municipal 
corporations  are  of  a  public  nature,  and  if  such  a  corporation 
should  refuse  to  give  inspection  thereof  to  any  person  having 
an  interest  therein  or,  perhaps,  for  any  proper  purpose  to  any 
inhabitant  of  the  corporation,  whether  he  had  any  special  or 
private  interest  or  not,  a  writ  of  mandamus  would  lie  to  com- 

^  American  and  English  Encyclopaedia  of  Law,  1892,  vol.  xx,  pp.  521-523. 
*  Dillon,  J.  F.,  Municipal  Corporations  (1881),  sec.  848. 


§  326]  Official  Reports  405 

mand  the  corporation  to  allow  such  inspection,  and  copies  to 
be  taken  under  reasonable  precautions  to  secure  the  safety  of 
the  originals." 

In  order  to  make  information  available  not  only  to  the 
governing  agents  themselves,  but  as  a  means  of  locating  and 
enforcing  responsibility,  the  federal  government,  every  state 
and  every  municipality,  has  made  laws  setting  forth  the 
character  of  records  which  must  be  kept  by  administrative 
ofl5cers.  These  not  only  go  into  the  subject  of  accounts,  but 
also  into  such  subjects  as  operating  statistics  and  records  of 
results  obtained.  Within  the  last  twenty-five  years  there  has 
been  a  general  movement  toward  uniformity  and  standard- 
ization of  legal  prescriptions  of  this  kind,  the  motive  being 
that  a  determination  should  be  reached  as  to  what  kind  of 
records  are  desirable  and  useful. 

326.  Publication  of  Official  Reports 

The  requirement  that  reports  showing  the  results  of  adminis- 
tration should  be  published  not  only  provides  a  means  whereby 
officers  may  inform  themselves,  but  is  an  aid  to  citizen  inquiry. 
Most  of  the  state  constitutions  provide  that  the  governor  may 
require  information  in  writing  from  administrative  officers  of 
the  executive  departments  upon  any  subject  relating  to  the 
duties  of  their  respective  offices.  In  a  few  states  he  is  also 
authorized  to  require  reports  from  all  managers  of  state  insti- 
tutions, and  this  information  must  in  several  states  be  given 
under  oath.  In  two  states  any  officer  making  a  false  report  is 
guilty  of  perjury.^  Somewhat  similar  power  is  given  to  the 
President  by  the  federal  constitution,  which  grants  him  the 
right  to  require  opinions  in  writing  from  the  principal  officers 
in  each  of  the  executive  departments,  upon  any  subjects  relat- 
ing to  the  duties  of  their  respective  offices.^  The  constitution 
of  the  United  States  further  provides  that  a  regular  statement 
and  account  of  the  receipts  and  expenditures  shall  be  pubUshed 

1  Stimson,  F.  J.,  Federal  and  Stale  Constiltitions,  sec.  281,  p.  243. 
^  Constitution  of  the  United  States,  art.  II,  sec.  2. 


4o6     Fixing  Executive  Responsibility  [§§327,328 

from  time  to  time.^  "By  the  Constitutions  of  most  states,  a 
regular  statement  and  account  of  receipts  and  expenditures 
of  public  moneys  must  be  published  annually,  semi-annually, 
or  after  every  session  of  the  legislature,  along  with  the  laws, 
or  in  some  manner  as  by  law  directed."  ^ 

327.   Legislative  Inquiries 

The  legislature  occupies  much  the  same  relation  to  the  public 
corporation  as  the  board  of  trustees  to  a  private  corporation. 
Not  only  has  it  the  right  to  require  of  the  executive  and  admin- 
istrative officers  an  accoimt  of  stewardship,  but  its  duty  is  to 
know  how  the  business  of  the  government  is  being  conducted. 
The  right  of  legislative  inquiry  therefore  is  highly  valuable  to 
the  people.  It  should  not  be  regarded,  however,  as  taking  the 
place  of  a  scheme  of  current  information  by  means  of  which 
the  administrator  may  himself  be  informed  as  to  what  is  going 
on.  The  administrator  as  well  as  the  legislator  needs  to  have 
regularly  and  frequently  brought  before  him  a  complete,  prompt, 
and  accurate  statement  of  affairs,  in  order  that  he  may  intel- 
ligently direct  and  control,  and  may  manage  affairs  with  which 
he  is  charged  efficiently  and  economically.  This  want  cannot 
be  supplied  by  legislative  inquiry.  In  fact,  the  frequent  special 
inquiries  of  legislatures  usually  fail  to  report  the  essential 
facts,  either  deliberately  or  as  a  result  of  the  adoption  of 
inferior  methods  of  accounting  and  reporting;  and  they 
further  fail  to  provide  methods  for  making  information  cur- 
rently available  in  the  future. 

328.  Impeachment  of  Executive  Officers 

Usually  some  provision  is  made  for  the  removal  of  federal, 
state,  and  municipal  executive  and  administrative  officers 
whether  they  are  elected  or  appointed  by  a  superior  officer. 
The  causes  for  removal  vary.  The  following  are  enumerated 
in  the  constitutions  of  the  several  states:  any  infamous  crime, 

^  Constitution  of  the  United  States,  art.  I,  sec.  g. 

*  Stimson,  F.  J.,  Federal  and  State  Constitutions,  sec.  321,  p.  364. 


329I 


Removal  of  Officers  407 


treason,  malfeasance,  maladministration,  misbehavior  in  office, 
neglect  of  duty,  extortion,  oppression,  bribery,  drimkenness, 
gross  immorality,  incompetence,  age,  mental  or  bodily  infir- 
mity.^ Removal  by  the  formal  process  of  legislative  impeach- 
ment extends  to  every  civil  officer  in  twenty-seven  states;  to 
all  officers,  under  the  constitution,  in  one  state;  and  to  all  execu- 
tive officers  in  four  states.^  Under  the  federal  constitution 
impeachment  extends  to  the  President,  Vice-President,  and  all 
civil  officers  for  treason,  bribery,  or  other  high  crimes  and 
misdemeanors.^ 

The  process  of  impeachment  is  usually  the  same  as  that  of 
the  federal  constitution.  The  House  has  the  sole  power  of 
impeachment,  while  the  charges  presented  by  the  House  must 
be  tried  by  the  Senate,  the  concurrence  of  two-thirds  of  the 
senators  being  necessary  for  conviction.  There  are  slight  vari- 
ations in  several  states.  In  two  states  the  charges  of  impeach- 
ment must  receive  the  concurrence  of  two-thirds  of  the  members 
present  in  the  House.  In  many  states  two-thirds  of  all  the 
senators  elected  must  support  the  charges  to  secure  conviction, 
while  in  four  a  vote  of  a  quorum  is  sufficient.  In  Nebraska 
the  impeachment  originates  by  joint  resolution  of  the  two 
houses,  and  the  trial  is  conducted  by  the  judges  of  the  supreme 
court;  in  New  York  by  the  senate  and  the  judges  of  the  Court 
of  Appeals. 

329.  Removal  of  Elective  Officers 

In  a  few  states  elected  state  officers  are  removed  by  the 
governor  upon  the  address  of  both  houses  of  the  legislature.* 

The  process  of  removal  of  local  elective  officers  in  counties, 
towns,  and  cities  is  usually  prescribed  by  law;  but  several  con- 
stitutions set  forth  the  method  of  removal  in  detail.^    Thus  the 

1  Stimson,  F.  J.,  Federal  and  State  Constitutions,  sec.  260,  p.  230. 

2  Stimson,  F.  J.,  Federal  and  Slate  Constitutions,  sec.  260,  pp.  230,  231. 
'  Constitution  of  the  United  States,  art.  II,  sec.  4. 

*  Stimson,  F.  J.,  Federal  and  State  Constitutions,   sees.   262,  265,  pp. 

231-33- 

5  Stimson,   F.  J.,  Federal  and  State  Constitutions,  sees.   266,  268,  pp. 

231-35- 


4o8         Fixing  Executive  Responsibility       [§330 

constitution  of  New  York  provides  that  the  governor  shall 
have  the  power  to  remove  county  sheriffs,  clerks,  district  attor- 
neys, and  registrars.^  The  constitution  further  authorizes  the 
legislature  to  make  provision  for  the  removal  of  local  elective 
officers.^  In  accordance  with  this  provision,  the  legislature 
has  authorized  the  governor  to  remove  "any  county  treasurer, 
any  county  superintendent  of  the  poor,  any  registrar  of  the 
county,  and  any  coroner  or  notary  public,"  ^  after  giving  to 
such  ofl&cers  a  copy  of  the  charges  against  them  and  an  oppor- 
tunity to  be  heard  in  their  defence. 

Likewise  the  state  legislature  has  the  power  to  provide  for 
the  removal  of  city  elective  officers.  Thus  in  New  York  City 
the  governor  has  the  power  to  remove  the  mayor,  borough  pres- 
idents, and  comptroller  after  giving  these  officers  an  oppor- 
tunity to  be  heard  in  their  defence.  The  method  of  taking 
evidence  against  officers  is  also  prescribed  by  law.  The  gov- 
ernor is  given  the  power  to  hear  the  evidence  himself  or  direct 
that  it  shall  be  taken  before  a  justice  of  the  supreme  court,  a 
county  judge,  or  by  a  commission  appointed  by  the  governor. 
He  may  direct  the  attorney  general  or  the  district  attorney  of 
the  county  in  which  the  accused  resides  "to  conduct  the  exami- 
nation into  the  truth  of  the  charges  alleged  as  a  ground  for 
such  removal." 

330.  Removal  of  Appointive  Officers 

The  methods  of  removal  described  above  relate  solely  to 
elective  officers.  As  we  pass  to  the  removal  of  appointive  offi- 
cers we  ffiid  that  naturally  very  much  simpler  and  direct  methods 
are  adopted.  The  usual  rule  is  that  the  appointive  authority 
shall  have  the  removing  power.  Thus  if  an  officer  is  appointed 
by  the  governor  alone  he  may  be  removed  by  the  governor;  but 
if  he  is  appointed  by  the  governor  with  the  approval  of  the 
Senate,  the  consent  of  the  Senate  is  required.  The  same  rule 
is  followed  in  cities  with  some  exceptions.  In  thirty  leading 
cities  the  appointing  power  has  the  removing  power:   in  a  few 

1  N.  Y.  Const.,  art.  X,  sec.  i.  ^N.Y.  Const,  art.  IV.  sec.  7. 

»  N.  Y.  Consolidated  Statutes  (1909),  IV,  3188-89. 


§§331,332]  Control  by  Courts  409 

places  the  mayor  may  remove  officers  whose  appointment 
requires  the  approval  of  the  council;  in  a  few  others  the  coun- 
cil may  remove  officers  appointed  by  the  mayor.  The  re- 
moval of  federal  cabinet  officers  constitutes  another  exception 
to  the  principle  that  the  appointing  and  the  removing  power 
shall  be  vested  in  the  same  authority.  For  a  short  period  of 
time  only,  from  1867  to  1869,  a  statute  provided  that  the 
approval  of  the  Senate  was  necessary  for  removals  as  well 
as  for  appointments.  Both  before  and  after  this  assumption 
of  power  by  the  Senate,  the  President  has  exercised  the  sole 
power  of  removing  appointive  officers. 

331.  Abolition  of  Executive  and  Administrative  Offices 

Although  legislatures  generally  have  not  the  power  of  removal 
of  administrative  officers,  they  usually  have  the  power  to 
abolish  the  office,  subject  to  any  limits  put  on  them  by  the 
constitution.  The  legislature  also  has  a  power  quite  as  effec- 
tive for  all  practical  purposes;  viz.,  that  of  refusing  to  vote 
funds  or  make  appropriations  for  carrying  on  the  work  of  the 
office.  The  executive  therefore  cannot  afford  to  run  in  the  face 
of  the  legislature  and  refuse  to  remove  or  abate  abuses,  when- 
ever it  is  apparent  that  the  legislature  will  be  upheld  in  action 
adverse  to  the  executive. 

For  those  offices  which  are  created  and  established  by  the 
constitution,  theoretically  the  same  remedy  is  present:  the  legis- 
lature may  submit  an  amendment  for  abolition  of  the  office. 
Such  a  situation,  however,  is  hardly  conceivable  as  a 
means  of  control  over  the  executive.  What  has  been  done 
in  many  cities,  and  a  change  which  is  now  being  favorably 
considered  in  the  state  administrative  system,  is  the  reduction 
of  the  number  of  constitutional  elective  officers  as  a  means  of 
centralizing  responsibility  in  the  few. 

332.  Responsibility  of  the  Executive  through  the  Court 

The  means  of  fixing  and  enforcing  executive  responsibility 
through  judicial  proceedings  are  adequate,  assuming  that  evi- 


41  o        Fixing  Executive  Responsibility       [§333 

dence  is  available.  Those  proceedings  which  may  be  inau- 
gurated by  citizens  have  already  been  discussed.  Generally 
speaking,  there  is  not  an  ofifence,  or  a  case  of  waste  of  pubHc 
resources  by  executive  and  administrative  agents,  which  may 
not  be  reached  and  corrected  through  the  courts,  if  the  court 
receive  con\dncing  evidences  of  the  offence  or  waste.  Difficul- 
ties in  obtaining  protection  for  the  public  have  not  been  in  the 
law,  but  in  the  ignorance  of  those  who  have  served  as  com- 
plaining witnesses  and  prosecutors. 

333.  Limitation  of  the  Executive  by  Constitutional  Inhibitions 

In  a  previous  chapter  the  main  provisions  enumerated  in  the 
bill  of  rights  in  the  several  constitutions  and  in  the  first  ten 
amendments  have  been  enumerated  and  their  inhibitions  upon 
the  legislative  powers  noted.  Many  of  these  inhibitions  also 
apply  to  the  executive  and  administrative  agents.  In  fact,  in 
a  certain  way,  these  inhibitions  are  more  binding  upon  the 
executive  and  judicial  agents  than  upon  the  legislature,  for  it 
is  frequently  provided  that  these  rights  shall  not  be  infringed 
except  as  provided  by  law. 

In  English  history  the  direct  limitations  of  power  expressed 
in  the  various  charters  or  bills  apply  chiefly  to  the  executive 
officers.  Thus  the  legislative  powers  of  the  King  were  lim- 
ited: the  Great  Charter  declares  that  no  scutage  or  aid  shall 
be  imposed  except  by  common  council  (sec.  12),  and  that  the 
common  council  shall  be  called  for  imposing  such  scutage  and 
aids  (sec.  14).^  This  limitation  reappeared  in  the  confirmation 
of  the  Great  Charter  under  later  kings  and  was  again  asserted 
in  the  Petition  of  Right  in  1628.^  Most  of  the  former  limita- 
tions, together  with  additional  ones  upon  the  royal  prerogative, 
were  finally  established  in  the  Bill  of  Rights  of  1689.  Here  it 
was  provided: 

"That  levying  .of  money  for  or  to  the  use  of  the  Crown  by 
pretense  of  prerogative,  without  any  grant  by  parliament,  for 

^  Cheyney,  E.  P.,  Readings  in  English  History,  pp.  183,  184. 
*  Cheyney,  E.  P.,  Readings  in  English  History,  pp.  458,  459. 


§334]  Suspension  of  Laws  411 

longer  time  or  in  other  manner  than  the  same  is  or  shall  be 
granted,  is  illegal. 

"That  the  pretended  power  of  suspending  laws,  or  the  execu- 
tion of  laws,  by  regal  authority,  without  the  consent  of  parHa- 
ment  is  illegal. 

"And  that  for  the  redress  of  all  grievances,  and  for  the  amend- 
ing, strengthening,  and  preserv'ing  of  the  laws,  parliament 
ought  to  be  held  frequently."  ^ 

These  limitations  were  definitely  imposed  upon  the  Amer- 
ican executives  through  our  written  constitutions  which  enu- 
merate the  powers  of  the  executive  officer.  His  power  over 
legislation  extends  to  written  messages  on  the  state  of  the 
country,  including  recommendations  for  legislation,  the  veto 
power,  and  the  right  to  call  the  legislature  in  extra  session.  All 
executive  officers  are  denied  the  right  to  act  as  members  of  the 
legislative  bodies,  save  in  some  of  our  municipalities;  and  hence 
all  direct  share  in  legislation  is  eUminated.  The  executive  can- 
not prorogue  the  legislature  except  when  the  two  houses  fail 
to  agree  upon  a  date  of  adjournment. 

Executive  and  administrative  officers  are  also  hmited  in  the 
expenditure  of  money.  By  the  constitutions  of  most  states 
no  money  can  be  paid  out  of  the  treasury  except  upon  appropri- 
ations definitely  made  by  law  for  some  specific  purpose,  and 
money  appropriated  for  one  purpose  cannot  be  diverted  by 
executive  or  administrative  officers  to  any  other  purpose.^ 

334.  No  Executive  Power  to  Suspend  Laws 

The  power  to  suspend  laws  by  the  executive,  which  was 
expressly  denied  the  Crown  in  the  Bill  of  Rights,  was  also 
forbidden  in  the  bill  of  rights  of  several  constitutions  adopted 
during  the  Revolutionary  period.  Thus  the  Virginia  bill  of  rights 
declared  "That  all  power  of  suspending  laws,  or  the  execution 
of  laws,  by  any  authority,  without  consent  of  the  representa- 
tives of  the  people,  is  injurious  to  their  rights,  and  ought  not  to 

^  Cheyney,  E.  P.,  Readings  in  English  History,  pp.  545,  546. 

*  Stimson,  F.  J.,  Federal  and  Slate  Constitutions,  sec.  312,  pp.  261,  262. 


412         Fixing  Executive  Responsibility       [§335 

be  exercised."  Likewise  the  Massachusetts  declaration  of 
rights  provided:  "The  power  of  suspending  the  laws,  or  the 
execution  of  the  laws  ought  never  to  be  exercised  but  by  the 
legislature,  or  by  authority  derived  from  it,  to  be  exercised  in 
such  particular  cases  only  as  the  legislature  shall  expressly  pro- 
vide for."  ^  Similar  restrictions  upon  the  executive  power 
appear  in  the  constitutions  of  most  states.^ 

336.  Suspension  of  Habeas  Corpus 

The  President  of  the  United  States  is  Commander-in-Chief 
of  the  Army  and  the  governors  of  the  respective  states  have 
charge  of  the  state  militia.  But  their  military  powers  are  ex- 
pressly limited  by  the  constitutions.  The  federal  constitution 
declares  that  the  writ  of  habeas  corpus  cannot  be  suspended 
except  in  case  of  rebellion  or  invasion.  The  writ  was  sus- 
pended by  Lincoln  during  the  Civil  War,  but  Taney,  Chief 
Justice  of  the  Supreme  Court,  held  that  this  could  only  be  done 
by  Congress.  However,  it  is  generally  agreed  that  this  pro- 
vision is  an  inhibition  upon  the  executive  as  well  as  on  the  legis- 
lature; for  a  contrary  view  would  leave  the  President  powerless 
during  rebellion  or  invasion  whenever  Congress  is  not  in 
session.  It  is  precisely  this  indefiniteness  of  the  general  inhi- 
bitions which  makes  it  so  difficult  to  separate  them  as  limita- 
tions upon  this  or  that  department  of  the  government.  Some 
of  the  state  constitutions  are  more  specific  on  this  point.  In 
nine  states  the  writ  can  never  be  suspended;  in  nine  others  it 
can  be  suspended  only  by  the  legislature;  while  in  two  states  it 
can  be  suspended  in  a  manner  prescribed  by  law. 

The  President  and  the  governors  are  also  limited  in  their 
power  to  call  the  army  or  militia  into  service.  Congress  and 
not  the  President  provides  for  calling  forth  the  militia,  to  exe- 
cute the  laws  of  the  union,  suppress  insurrections,  and  repel 
invasions.^    President  Lincoln  called  out  troops  without  con- 

1  Stimson,  F.  J.,  Federal  a-nd  State  Constitutions,  p.  79. 

2  Stimson,  F.  J.,  Federal  and  State  Constitutions,  sec.  392,  pp.  291,  292. 
»  Constitution  of  the  United  States,  art.  I,  sec.  8. 


§  335l  Habeas  Corpus  413 

gressional  action,  but  he  recognized  the  unconstitutionality  and 
asked  Congress  to  confirm  his  action.  Similar  limitations  are 
imposed  upon  the  governors.  In  most  states  the  governor  can 
call  out  the  militia  to  execute  the  laws,  to  suppress  insurrec- 
tion, and  to  repel  invasion.  But  in  three  states  he  can  do  so 
only  when  the  legislature  declares  that  the  public  safety 
requires  it,  or,  as  in  Tennessee,  only  by  special  enactment 
of  the  legislature.^ 

'  Stimson,  F.  J.,  Federal  and  State  Constitutions,  sees.  297,  298,  pp.  247, 
248. 


CHAPTER  XXXII 

LIMITATIONS  ON  THE  POLITICAL  ACTIVITY  OF  EXECUTIVE 

OFFICIALS 

336.  References 

Bibliography:  A.  B.  Hart,  Manual  (1908),  §§  108-110,  155,  213;  A.  B. 
Hart,  Actual  Government  (rev.  ed.,  1908),  §  125;  C.  R.  Fish,  Civil  Service 
and  Patronage  (1905),  Appendix  D;  Brookings  and  Ringwalt,  Briefs  for 
Debate  (1896),  No.  17;  Municipal  AJfairs,  V,  52,  53;  L.  A.  Jones,  Index  to 
Legal  Periodical  Literature  (1888,  1899),  II,  73,  74. 

Historical  Discussions:  C.  R.  Fish,  Civil  Service  and  Patronage  (1905); 
C.  R.  Fish,  Removals  (Am.  Hist.  Assoc,  Report,  1899);  A.  B.  Hart,  Prac- 
tical Essays  (1893),  No.  iv;  J.  Bryce,  American  Commonwealth  (rev.  ed., 
1910),  II,  ch.  kv;  G.  E.  Howard,  Imperialism  arui  Civil  Service  {Pol.  Sci. 
Quart.,  XIV,  240-250,  1899);  G.  Hunt,  Office-seeking  under  Washington, 
John  Adams,  and  Jeffierson  {Am.  Hist.  Rev.,  I,  270-283;  II,  241-261;  III, 
270-291);  D.  R.  Dewey,  National  Problems  (1907),  ch.  ii;  F.  A.  Cleveland, 
Growth  of  Democracy  (1898),  chs.  xi,  xv;  J.  N.  Merriam,  Jeffierson's  Patron- 
age (Am.  Hist.  Assoc,  Papers,  II,  47-52);  H.  C.  Lodge,  Historical  and  Polit- 
ical Essays  (1892),  114-137;  G.  McAneny,  Civil  Service  {Mimic.  Affiairs, 
IV,  708-720);  F.  P.  Powers,  Reform  of  the  Federal  Service  {Pol.  Sci.  Quart., 
Ill,  247-264);  T.  Roosevelt,  American  Ideals  (1897),  No.  vii;  T.  Roose- 
velt, Civil  Service  Reform  {Atlantic  Monthly,  LXVII,  252-257);  T.  Roosevelt 
Strenuous  Life  (1901),  41-112,  125-152;  J.  A.  Woodburn,  Political  Parties 
(1903),  ch.  ix,  xvii. 

Treatises:  F.  J.  Goodnow,  Comparative  Administrative  Law  (1893),  II, 
34-44;  F.  J.  Goodnow,  Municipal  Problems  (1897),  ch.  viii;  J.  A.  Fairlie, 
National  Administration  (1905),  252-256;  A.  B.  Hart,  Actual  Government 
(rev.  ed.,  1908),  §§  71-94,  131-134;  D.  B.  Eaton,  Government  of  Municipal- 
ities (1899),  chs.  vii,  viii. 

Reports  of  Ciytl  Service  A>fD  Other  Commissions,  Leagues,  etc. : 
United  States  Civil  Service  Commission,  Annual  Reports  (1884-  );  Mas- 
sachusetts Civil  Service  Commission,  Annual  Report  (1885-  );  New 
York  Civil  Service  Commission,  Annual  Report  (1884-  );  National 
Civil  Service  Reform  League,  Proceedings.  President's  Commission  on 
Economy  and  Efficiency,  Report  on  Methods  of  Appointments,  H.  D.  670, 
62d  Cong.  2d  Session;  Report  on  Apportionment  of  Appointments  from  the 
Registrar  of  the  Civil  Service  Commission  {Manuscript). 

337.   Rise  of  the  SpoUs  System 
From  the  Revolution  on  in  several  states,  notably  in  New 
York  and  Pennsylvania,  it  was  an  accepted  doctrine  that  the 
holding  of  a  political  office  in  state  and  municipahty  was  a 


§337]  Spoils  System  415 

reward  for  partisan  services.  The  theory  spread,  and  in  Jack- 
son's administration  it  was  extended  to  the  federal  service. 
This  was  one  result  of  our  early  laissez-faire  philosophy  which 
soon  degenerated  into  a  theory  that  the  government  existed 
primarily,  not  for  the  promotion  of  public  welfare,  but  as  an 
agency  for  distributing  public  resources  and  promoting  the 
acquisition  of  private  wealth;  in  this  general  scheme  of  distri- 
bution was  included  the  payment  of  money  from  the  public 
treasury  in  the  form  of  salaries  to  office  holders.  That  is,  the 
office  instead  of  being  regarded  as  a  trusteeship  was  in  practice  a 
part  of  the  patronage  to  be  distributed  by  the  management  of  the 
dominant  party  machine.  This  spoils  system  reached  its  apogee 
between  1S45  and  1S73.  One  cause  is  pointed  out  by  Fish: 
"The  old  traditions  of  respectability  had  passed  away  and  the 
later  spirit  of  reform  had  not  arisen.  .  .  .  During  this  time 
the  party  servants  divided  the  spoils  and  were  not  ashamed."  ^ 
Another  cause  is  found  in  the  great  expenditures  and  the  loose 
methods  incident  to  the  Civil  War.  Every  federal,  state,  and 
municipal  election  was  to  the  political  fortune  hunter  a  con- 
test—with civil  employment,  government  contracts,  special  priv- 
ileges, or  other  favors  to  the  individual  as  the  prize.  Not  only 
were  appointments  based  upon  services  rendered  in  a  success- 
ful campaign,  but  continuance  in  office  depended  upon  sim- 
ilar services  while  in  office.  Thus,  in  the  first  place,  inefficient 
men  were  appointed  to  public  service;  and,  in  the  second  place, 
these  men  could  not  attain  efficiency  while  in  office  since  their 
time  was  consumed  in  managing  future  campaigns.  Their 
usefulness  was  to  a  constituency  which  was  looking  for  special 
favors  as  a  reward  for  its  support  of  the  official. 

In  order  to  remedy  this  evil  the  political  activity  of  a  large 
fraction  of  appointive  office  holders  has  been  curtailed  by  law 
and  executive  orders,  in  the  nation,  in  several  states,  and  in  a 
large  number  of  municipalities.  Thus  these  public  officers  and 
employees  are  forbidden  to  exercise  a  leading  influence  in  cam- 
paigns, and  as  a  reward  they  are  protected  against  demands 
'  Fish,  C.  R.,  Tlie  Civil  Service  and  the  Patronage,  p.  158. 


41 6  Political  Activity  of  Officials  [§338 

made  upon  them  for  political  service  because  of  their  ofi&ce. 
This  limitation  and  protection  is  especially  clear  in  the  civil 
service  legislation  of  the  federal  government. 

338.   Civil  Service  Reform 

After  the  Civil  War  came  an  active  movement  for  the  regu- 
lation of  the  civil  service.  Bills  were  introduced  in  the  House 
of  Representatives  in  1865,  1867,  and  later.^  The  cause  con- 
tinued to  be  championed  by  such  leaders  as  Jenckes,  Carl 
Schurz,  and  George  Wilham  Curtis,  with  the  result  that  in  the 
campaign  of  1868  Grant  expressed  himself  in  favor  of  it.  He 
urged  its  adoption  in  1870  and  Congress  attached  a  rider  to  the 
appropriation  bill,  authorizing  the  President  "to  prescribe 
such  rules  and  regulations  for  admission  of  persons  into  civil 
service  of  the  United  States  as  will  best  promote  the  efficiency 
thereof  and  ...  to  employ  suitable  persons  to  conduct  in- 
quiry." Grant  appointed  an  advisory  board  with  George 
William  Curtis  as  president,  but  Congress,  after  an  experience  of 
about  a  year,  cut  off  the  appropriation,  and  Curtis  resigned  after 
several  years'  service. 

The  first  great  impetus  given  to  the  anti-spoils  movement 
came  with  the  hard  times  that  followed  1872  and  1873.  In 
the  campaigns  of  1872  and  1876  several  party  platforms  adopted 
resolutions  favoring  the  reform.  President  Hayes  advocated 
it  in  his  inaugural  message  of  1877  and  as  an  earnest  thereof 
directed  Dorman  B.  Eaton  to  write  a  history  of  civil  service  in 
England  with  special  reference  to  the  United  States,  and  ap- 
pointed Carl  Schurz  as  Secretary  of  the  Interior,  which  posi- 
tion offered  the  best  opportunity  for  its  introduction.  As  a 
result  of  this  general  movement  the  New  York  Custom  House 
passed  under  civil  service  regulations  in  1879  and  the  New  York 
Post-Office  in  1880.  During  this  period  private  civil  service 
reform  associations  were  formed  in  New  York  (1877),  Boston, 
Philadelphia,     Milwaukee,    and    San    Francisco.    This    was 

1  Summary  based  upon  Fish,  C.  R.,  The  Civil  Service  atui  the  Patronage, 
pp.  211-22. 


§339]  Classified  Service  417 

followed  by  the  formation  of  the  National  Civil  Service  League 
in  1 88 1,  with  George  William  Curtis  as  president. 

The  death  of  President  Garfield  at  the  hands  of  a  disappointed 
office  seeker  in  1881  still  further  aroused  public  opinion;  and  in 
the  congressional  campaign  of  1882,  civil  service  became  a  wide- 
spread issue.  In  the  following  session  a  bill  was  drawn  up  by 
Dorman  B.  Eaton  and  introduced  by  George  H.  Pendleton, 
chairman  of  the  Senate  Committee  on  Civil  Service,  resulting 
in  the  enactment  of  the  civil  service  law  of  1883,  which  is 
still  in  force  with  slight  modifications  and  has  become  the  model 
of  similar  regulations  in  several  states  and  municipalities. 

339.  The  Classified  Service 

The  restrictions  of  that  statute  upon  the  political  activity 
of  public  officers  and  employees  affect  chiefly  the  classified 
service.  During  the  administration  of  Garfield  and  Arthur  the 
classified  list  covered  about  14,000  positions  out  of  the  entire 
service  of  110,000.^  President  Cleveland  in  his  first  admin- 
istration added  7258  to  the  classified  list  and  in  his  second 
administration  he  increased  it  to  a  total  of  85,000  out  of  a 
service  which  had  arisen  to  205,000.  President  McKinley 
withdrew  8000  places  from  the  classified  list,  but  these  were 
again  restored  by  President  Roosevelt,  who  in  1901  found 
108,967  classified  positions  out  of  the  entire  service  of  235,766. 
At  the  time  of  his  retirement  in  1909  the  competitive  service 
had  risen  in  round  numbers  to  220,000  out  of  a  total  executive 
list  of  352,104,  which  is  approximately  two-thirds  of  the  entire 
service.^  This  was  accomplished  in  a  large  measure  by  bring- 
ing in  extensive  branches  of  the  service  into  the  classified  list, 
such  as  the  field  service  of  the  War  Department,  the  rural  free 
delivery  service,  the  forestry  service,  the  deputy  collectors,  dep- 
uty naval  officers  and  cashiers,  and  the  cashiers  and  finance 

^  Choate,  Joseph  H.,  Twenty-five  Years  of  Civil  Service  Reform,  iqo8. 
One  of  the  annual  addresses  delivered  by  the  president  of  the  League  which 
furnish  a  summary  of  progress. 

*  These  figiures  are  taken  from  the  address  above  mentioned. 
28 


41 8  Political  Activity  of  Officials  [§340 

clerks  of  local  post-offices.  President  Taft  in  191 2  extended 
the  reform  still  further  and  has  approved  for  legislative  action 
the  recommendations  of  the  Commission  on  Economy  and 
Efficiency  to  the  effect  that  all  persons  who  are  appointed  by 
and  with  the  advice  and  consent  of  the  Senate,  except  cabinet 
officers  and  assistant  secretaries,  be  added  to  the  classified 
service.^  If  legislation  of  the  character  recommended  were 
enacted  it  would  mean  that  some  $18,600,000  of  salaries  now 
expended  as  a  reward  for  political  service  would  be  paid  in 
return  for  meritorious  administrative  and  clerical  work  and 
the  largest  single  influence  to-day  in  perpetuation  of  the  spoils 
system  would  be  aboHshed.^ 

340.  Limitations  on  Political  Assessments 
Limitations  have  been  set  by  law  and  executive  orders  upon 
the  officers  and  employees  of  the  classified  service  and  to  some 
extent  upon  the  appointive  officers  in  the  unclassffied  service. 
Seven  years  before  the  enactment  of  the  Civil  Service  Law  of 
1883,  Congress  enacted  a  law  prohibiting  all  executive  officers 
or  employees,  not  appointed  by  the  President  with  the  advice 
and  consent  of  the  Senate,  "from  requesting,  giving  to,  or  receiv- 
ing from  any  officer  or  employee  of  the  government,  any  money 
or  property  or  other  things  of  value  for  political  purposes." 
Any  officer  or  employee  offending  against  this  provision  was 
to  be  discharged  at  once  and  fined  in  the  sum  of  not  exceeding 
five  hundred  dollars.  This  provision  was  declared  constitu- 
tional by  the  courts,  but  was  interpreted  by  the  attorney  gen- 
eral in  1882  not  to  apply  to  members  of  Congress.  This  law  of 
1876  was  supplemented  by  the  Ci\il  Service  Act  of  1883  as 
follows:  "That  no  Senator,  or  Representative,  or  Territorial 
Delegate  of  the  Congress,  or  Senator,  Representative,  or  Dele- 
gate elect,  or  any  officer  or  employee  of  either  of  said  Houses, 
and  no  executive,  judicial,  military  or  naval  officer  of  the  United 

'  Report  of  the  Commission  on  Economy  and  Efficiency  on  "Methods 
of  Appointment,"  House  Doc,  No.  670,  62  Congress,  2  session  (1912). 

^  For  a  list  of  these  positions  see,  Sen.  Doc,  No,  11 13,  p.  392,  62  Con- 
gress, 3  session. 


§34i]  Partisanship  of  Employees  419 

States,  and  no  clerk  or  employee  of  any  department,  branch,  or 
bureau  of  the  executive,  judicial  or  military  or  naval  service  of 
the  United  States,  shall,  directly  or  indirectly,  solicit  or  receive, 
or  be  in  any  manner  concerned  in  soliciting  or  receiving  any  as- 
sessment, subscription,  or  contribution  for  any  political  purpose 
whatever,  from  any  officer,  clerk,  or  employee  of  the  United 
States,  or  any  department,  branch,  or  bureau  thereof,  or  from 
any  person  receiving  any  salary  or  compensation  from  moneys 
derived  from  the  Treasury  of  the  United  States."  The  above 
provision  was  aimed  against  solicitation  by  federal  officers  and 
employees;  while  section  14  of  the  same  law  prohibited  such 
officers  from  giving  or  handing  over  to  the  above  enumerated 
officers  any  money  or  valuable  things  to  be  applied  to  the 
promotion  of  any  political  object. 

Another  section  (12),  on  the  other  hand,  aims  to  free  the 
employees  and  officers  from  outside  political  influences.  It 
provides  that  ''no  person  shall,  in  any  room  or  building  occu- 
pied in  the  discharge  of  official  duties  by  any  officer  or  employee 
of  the  United  States  mentioned  in  this  act,  or  in  any  navy  yard, 
fort,  or  arsenal,  solicit  in  any  manner  whatever,  or  receive  any 
contribution  of  money,  or  any  other  thing  of  value  for  any 
political  purpose  whatever."  Section  13  gives  still  further 
protection  to  officers  and  employees.  No  officer  or  employee 
is  to  be  discharged,  promoted,  or  degraded  for  giving,  or  with- 
holding, or  neglecting  to  make  such  contributions.^ 

341.  Limitations  on  Offensive  Partisanship  of  Employees 

Three  years  after  the  enactment  of  this  law  President  Cleve- 
land, a  warm  defender  of  civil  service  reform,  issued  the  follow- 
ing warning  to  federal  office  holders:  "I  deem  this  a  proper  time 
especially  to  warn  all  subordinates  in  the  several  departments, 
and  all  office  holders  under  the  general  government,  against 
the  use  of  their  official  positions  in  attempts  to  control  the 
political  movements  in  their  localities.  Office  holders  are 
agents  of  the  people,  not  their  masters.  Not  only  are  their 
'  22  Statutes  at  Large,  406,  407. 


420  Political  Activity  of  Officials  [§  342 

time  and  labor  due  to  the  government,  but  they  should  scrupu- 
lously avoid,  in  their  political  action  as  well  as  in  the  discharge 
of  their  ofl&cial  duty,  offending  by  a  display  of  obtrusive  par- 
tisanship their  neighbors  who  have  relations  with  them  as 
public  officials.  They  should  constantly  remember  that  their 
party  friends,  from  whom  they  have  received  preferment,  have 
not  invested  them  with  the  power  of  arbitrarily  managing  their 
political  affairs. 

"They  have  no  right  as  office  holders  to  dictate  the  political 
action  of  their  party  associates,  or  throttle  freedom  of  action 
within  party  lines,  by  methods  and  practices  which  pervert 
every  useful  and  justifiable  purpose  of  party  organization. 
The  influence  of  federal  office  holders  should  not  be  felt  in  the 
manipulation  of  political  primary  meetings  and  nominating 
conventions.  The  use,  by  these  officials,  of  their  positions  to 
compass  their  selection  as  delegates  to  political  conventions  is 
indecent  and  unfair,  and  proper  regard  for  the  proprieties  and 
requirements  of  official  place  will  also  prevent  their  assuming 
active  conduct  of  political  campaigns. 

"Individual  interest  and  activity  in  political  affairs  are  by 
no  means  condemned.  Office  holders  are  neither  disfranchised 
nor  forbidden  the  exercise  of  political  privileges;  but  their 
privileges  are  not  enlarged  nor  is  their  duty  to  party  increased 
to  pernicious  activity  by  office  holding.  A  just  discrimina- 
tion in  this  regard,  between  the  things  a  citizen  may  properly 
do  and  the  purposes  for  which  a  public  office  should  not  be 
used,  is  easy  in  the  light  of  a  correct  appreciation  of  the  rela- 
tion between  the  people  and  those  intrusted  with  official  place, 
and  a  consideration  of  the  necessity  under  our  form  of  govern- 
ment of  political  action  free  from  official  coercion."  ^ 

342.   Recent  Attitude  of  Presidents  on  Political  Action  of  Employees 

President  Roosevelt  expressed  the  same  idea  in  briefer  form. 
He  maintained  that  a  man  in  the  classified  service,  while  retain- 
ing his  right  to  vote  as  he  pleases  and  to  express  privately  his 
^  Beard,  C.  A.,  Readings  in  Politics  and  Government,  p.  578. 


§3431  Legal  Participation  421 

opinions  on  all  political  subjects,  "should  not  take  any  active 
part  in  political  management  or  in  political  campaigns,  for  pre- 
cisely the  same  reason  that  a  judge,  or  an  army  officer,  a  regular 
soldier,  or  a  policeman  is  debarred  from  taking  active  part."  ^ 

343.  Degree  of  Legal  Participation  of  Office  Holders  in  Political 

Activity 

In  additions  to  these  interpretations  by  two  presidents, 
several  attorneys  general  have  issued  opinions  and  orders.  In 
1896  the  attorney  general  ruled  that  the  law  of  1883  did  not 
prohibit  voluntary  contributions,  but  merely  aimed  to  pro- 
tect such  persons  in  the  civil  service  from  sohcitation  or  coer- 
cion with  respect  to  such  contributions.  On  November  22, 190 1, 
the  attorney  general  addressed  the  following  letter  to  officers 
and  employees  in  the  Department  of  Justice:  "The  spirit  of 
the  civil  service  law  and  rule  renders  it  highly  undesirable  for 
federal  officers  and  employees  to  take  active  part  in  political 
conventions  or  in  the  direction  of  other  parts  of  political  machin- 
ery. Persons  in  government  service  .  .  .  should  not  act  as  chair- 
men of  political  organizations,  nor  make  themselves  unduly 
prominent  in  local  political  matters.  It  is  expected  and  required 
that  all  officers  and  employees  of  this  Department  shall  act 
in  entire  conformity  with  the  views  herein  set  forth."  ^ 

In  1902  the  postmaster  general  laid  down  the  following  opin- 
ion, distinguishing  between  political  activity  of  those  in  the 
classified  and  unclassified  service:  "As  to  political  activity, 
a  sharp  line  is  drawn  between  those  in  the  classified  and  those 
in  the  unclassified  service.  Postmasters  or  others  holding 
unclassified  positions  are  merely  prohibited  from  using  their 
offices  to  control  political  movements,  from  neglecting  their 
duties,  and  from  causing  public  scandal  by  political  activity. 
A  person  in  the  classified  service  has  an  entire  right  to  vote  as 
he  pleases,  and  to  express  privately  his  opinions  on  all  political 
subjects,  but  he  should  not  take  part  in  political  management 

•  Foltz,  E.  B.  K.,  The  Federal  Civil  Service  as  a  Career,  p.  74. 

2  Foltz,  E.  B.  K.,  The  Federal  Civil  Service  as  a  Career,  pp.  74,  75. 


422  Political  Activity  of  Officials         [§  343 

or  in  political  campaigns.  It  is  not  the  practice  of  the  depart- 
ment to  prohibit  postmasters  from  holding  positions  as  members 
of  political  committees,  but  it  does  prohibit  them  from  serv- 
ing in  the  capacity  of  officers  of  committees."  ^ 

Thus  it  may  be  seen  that  the  laws  and  executive  orders 
prohibit  those  in  the  classified  service  from  taking  any  public 
part  in  campaigns;  while  those  in  the  unclassified  service  are 
prohibited  from  taking  a  leading  part. 

Investigations  by  the  National  Civil  Service  Reform  League 
on  the  activity  of  federal  office  holders  confined  chiefly  to  the 
political  activity  of  federal  office  holders  in  the  unclassified 
service  in  the  Southern  States  show  conclusively  that  it  is  essen- 
tial to  subject  the  unclassified  service  to  further  restrictions. 

The  minutes  of  the  meeting  of  the  state  central  committee  of 
Arkansas,  May  30,  1906,  illustrates  this  need:  "The  chair- 
man, H.  L.  Remmel  (U.  S.  Marshal),  stated  that  the  meeting 
was  one  to  hear  contests  and  recommend  temporary  officers  to 
the  state  convention.  The  secretary,  W.  S.  Holt  (postmaster 
at  Little  Rock),  stated  that  there  were  no  contests.  Powell 
Clayton  moved  that  C.  N.  Ricks  be  recommended  as  temporary 
chairman  of  the  convention  and  it  was  carried.  On  motion  of 
J.  K.  Barnes  (U.  S.  District  Attorney),  W.  S.  Holt  (postmaster 
at  Little  Rock)  was  recommended  as  temporary  secretary. 
H.  L.  Remmel  (U.  S.  Marshal)  stated  that  he  intended  to 
give  up  the  chairmanship.  Colonel  Whipple  (U.  S.  District 
Attorney)  offered  a  resolution  of  thanks  for  Remmel's  services, 
which  was  adopted  after  amendment  offered  by  Colonel  Briz- 
zolara  (postmaster  of  Fort  Smith).  On  motion  of  J.  K.  Barnes 
(U.  S.  Attorney)  the  thanks  of  the  committee  were  extended 
to  the  secretary,  W.  S.  Holt  (postmaster  at  Little  Rock)." 
The  state  convention  was  held  on  the  following  day  and  prac- 
tically all  the  nominations  and  motions  were  again  made  by  a 
federal  office  holder.^ 

^  U.  S.  Civnl  Service  Commission,  Annual  Report,  1906,  p.  50. 
*  Arkansas  Central  Committee,  Report  of  Special  Committee,  1909,  pp. 
13,  14- 


§344]  States  and  Municipalities  423 

The  result  of  the  investigation  shows  further  that  in  the 
National  Republican  Convention  of  igo8  at  least  one-third  of 
the  delegates  from  the  Southern  States  were  federal  office 
holders,  and  it  points  out  the  great  temptation  of  candidates 
for  the  presidency  to  control  this  delegation. 

Similar  conditions  are  shown  to  exist  in  the  Northern  States 
in  a  less  marked  degree,  and  a  special  committee  of  the  National 
Civil  Service  League,  which  had  charge  of  this  investigation, 
urges:  (i)  the  extension  by  the  President  of  the  classified,  com- 
petitive service  to  the  utmost  limit  that  the  law  allows;  (2) 
legislation  by  Congress  permitting  the  classification  of  the 
officers  whose  appointment  is  now^  subject  to  confirmation 
by  the  Senate,  but  who  perform  purely  ministerial  functions; 
(3)  a  clearer  definition  and  strengthening  of  the  executive  orders 
governing  political  activity  in  the  unclassified  service;  the 
vesting  of  the  power  to  investigate  cases  arising  under  this 
order  in  the  Civil  Service  Commission  or  some  other  body 
independent  of  departmental  dictation. 

344.   Civil  Service  in  the  States  and  Municipalities 

The  federal  civil  service  act  of  1883  furnished  an  incentive 
to  similar  legislation  affecting  state  and  municipal  officers  and 
employees.  Most  of  the  laws  enacted  by  state  legislatures, 
or  adopted  by  the  referendum  of  the  people  in  cities  possessing 
the  right  to  make  their  own  charters,  incorporate  with  only  slight 
changes  the  provisions  of  the  federal  act  relating  to  the  cur- 
tailment of  the  political  activity  of  officers  and  employees 
placed  in  the  classified  list.  Hence  all  that  is  here  necessary 
is  a  brief  survey  of  the  spread  of  civil  service  reform  to  states 
and  municipalities. 

In  1883  the  New  York  legislature  passed  a  law  based  upon 
the  federal  act  providing  for  a  state  civil  service  commission 
and  for  the  classification  of  the  state  and  municipal  civil  serv- 
ice employees.^  The  law  as  amended  compels  the  mayor  in 
each  city  to  "appoint  and  employ  suitable  persons  to  prescribe, 
^  Collier,  W.  M.,  Civil  Service,  pp.  213-22. 


424  Political  Activity  of  Officials  [§  344 

amend,  and  enforce  rules  for  the  classification  of  ofl5ces,  places, 
and  employment."  ^  The  merit  principle  became  so  firmly 
established  in  this  state  that  a  provision  was  introduced  into 
the  constitution  of  1894  requiring  the  application  of  the  merit 
system,  "as  far  as  practicable,"  substantially  to  all  appoint- 
ments and  promotions  in  the  civil  service  of  the  state,  includ- 
ing cities  and  villages. ^  In  1908  there  were  forty-seven  cities 
with  civil  service  commissions.  The  classified  service  in  these 
cities  aggregated  63,485  and  the  unclassified  9893,  while  the 
state  classified  service,  including  the  county  service,  numbered 

12,845.^ 

One  year  later  (1884)  Massachusetts  followed  the  example 
of  New  York  by  providing  for  a  state  civil  service  commission 
and  the  classification  of  the  state  service,  but  it  did  not  make 
the  extension  of  the  law  to  cities  mandatory.^  It  left  its  adop- 
tion optional  with  the  cities  of  a  specified  minimum  population. 
Any  city  with  a  population  of  more  than  12,000  may  adopt  the 
civil  service  provisions  of  the  state  act.^  In  1907  there  were 
forty  cities  which  had  adopted  the  merit  system  in  a  more  or 
less  extended  form.^  In  some  cities  the  principle  affects  only  a 
limited  number  of  oflacers,  while  the  town  of  Milton  has 
apphed  it  to  the  heads  of  departments.^ 

New  York  and  Massachusetts  are  the  only  states  which  acted 
during  the  initial  period.  In  1905  Wisconsm  established  a 
state  civil  service  commission  under  a  comprehensive  act,  in- 
cluding the  classification  of  all  state  executive  departments.^ 
The  Illinois  act  (1905),  on  the  other  hand,  is  limited  to  chari- 
table institutions  and  all  other  institutions  over  which  the 
Commissioners  of  PubHc  Charities  have  jurisdiction.^    Three 

1  N.  Y.  Consolidated  Statutes,  1909,  vol.  i,  pp.  228,  329. 
«  N.  Y.  Const.,  1894. 

»  N.  Y.  Civil  Service  Commission,  Report,  1908,  pp.  31,  584. 
*  Mass.  Laws,  1884,  ch.  320,  sec.  6. 
^  Mass.  Laws,  1894,  ch.  267;  1896,  ch.  449. 

6  Mass.  Civil  Service  Commissioners,' 7?e/»or/,  1904-1907,  pp.  25-32. 
"  Gregory,  C.  N.,  Civil  Service  Reform  in  American  Municipalities  {Iowa 
Journal  of  History  and  Politics,  vol.  iii,  p.  46). 

8  Wis.  Laws,  1905,  ch.  363,  sees.  2,  3.         »  111.  Laws,  1905,  p.  113,  sec.  3. 


§3451  Present  Status  425 

yeai!^  later  (1908)  New  Jersey  created  a  state  civil  service  com- 
mission and  provided  for  the  classification  of  the  state  service 
and  the  cities  were  empowered  to  adopt  the  same  rules  either 
by  ordinance  or  by  popular  vote.^ 

345.  Present  Status  of  the  CivU  Service  in  States 

Some  states  have  failed  to  adopt  the  merit  principle  in  the 
appointment  of  state  ofl&cers  and  employees,  but  have  enacted 
a  general  law  permitting  its  adoption  in  cities  after  approval 
by  the  voters  of  the  cities.  Illinois  made  such  provision  in  1895,2 
Ohio  in  1902,  Pennsylvania  in  1906,^  Iowa  in  1906,^  Colorado 
in  1907,^  New  Jersey  in  1908,^  and  Kansas  in  1909.'  In  sev- 
eral states  it  is  hmited  to  cities  of  the  first  and  second  class, 
while  in  two  states  it  is  limited  to  cities  adopting  the  com- 
mission form  of  government.^ 

Some  states  have  avoided  general  laws  and  granted  civil 
service  regulations  to  individual  cities;  whereas  in  states  which 
adopt  the  principle  of  home  rule  in  framing  city  charters,  many 
cities  have  adopted  their  own  civil  service  regulations.  Such 
is  the  case  in  San  Francisco  and  Los  Angeles  (Cal.),  in  Portland 
(Ore.),  in  Seattle  (Wash.),  and  Kansas  City  (Mo.). 

Although  this  survey  of  the  application  of  civil  service  to 
municipalities  is  far  from  complete,  it  goes  to  show  that  effi- 
cient civil  service  in  states  and  municipalities  is  still  in  its  in- 
fancy, as  compared  with  the  progress  of  civil  service  reform  in 
the  national  government.  In  most  of  the  states  and  cities, 
therefore,  the  public  employees  and  oflBce  holders  are  still  ap- 
pointed in  return  for  some  political  service,  and  are  expected 
to  continue  their  pohtical  activity  while  in  office. 

1  N.  J.  Laws,  1908,  p.  23s,  sees.  3,  30. 

*  III.  Laws,  1895,  sec.  i,  p.  85. 
'  Pa.  Laws,  1906,  sec.  i,  p.  29. 

*  Iowa,  32  G.  A.  48,  sec.  14. 

8  Colo.  Laws,  1907,  sec.  18,  p.  262. 

6  N.   J.   Laws,  1908,  sec.  30,  p.  235. 

^  Kans.  Laws,  1909,  ch.  76,  sec.  i. 

8  Iowa  Journal  of  History  and  Politics,  vol.  iii,  pp.  48,  49. 


CHAPTER  XXXIII 
RESTRAINTS  ON  JUDICL\L  OFFICERS 

346.  References 

Bibliography:  A.  B.  Hart,  Manual  (1908),  §§  8,  105,  106,  113,  114,  161, 
216,  217;  E.  McClain,  Constitutional  Law  (rev.  ed.,  1910),  §§  72,  135;  A.  B. 
Hart,  Actual  Government  (rev.  ed.,  1908),  §§  72,  135;  L.  H.  Jones,  Index  to 
Legal  Periodical  Literature  (2  vols.,  1888,  1899);  List  oj  References  on  the 
Initiative,  Referendum,  and  Recall  (Lib.  of  Cong.,  1912). 

The  Selection  of  Judges:  S.  E.  Baldwin,  The  American  Judiciary 
(1905),  ch.  xxii;  S.  E.  Baldwin,  Modern  Political  Institutions  (1898);  J. 
Bryce,  The  American  Commonwealth  (rev.  ed.,  1910),  I,  ch.  xxii;  J.  W. 
Burgess,  Political  Science  a'nd  Constitutional  Law  (1890),  II,  322-325;  J. 
Kent,  Commentaries  on  American  Law  (1896),  lect.  xiv;  C.  E.  Merriam, 
American  Political  Theories  (1903),  ch.  v;  James  Schouler,  Constitutional 
Studies  (1897),  64,  65,  286-290;  J.  R.  Tucker,  Constitution  (1899),  ch.  xiii; 
A.  B.  Hart,  Actual  Government  (3d  ed.,  1908),  §§  73,  137. 

The  Impeachment  and  Removal  of  Judges:  R.  Foster,  Commenta- 
ries on  the  Constitution  (1896),  Appendix,  633;  H.  C.  Black,  Constitutional 
Law  (1897),  §  70;  A.  B.  Hart,  Actual  Government  (rev.  ed.,  1908),  §  139; 
J.  N.  Pomeroy,  Constitutional  Law  (1888),  part  iii,  ch.  v,  §§  715-728;  J.  R. 
Tucker,  Constitution  (1899),  ch.  xiii. 

The  Recall  of  Judges:  Beard  and  Schioltz,  The  Initiative,  Referendum 
and  Recall  (19 12),  Introduction;  W.  I.  Dodd,  The  Recall  and  the  Political 
Responsibility  of  Judges  {Michigan  Law  Review,  X,  79-92);  T.  Roosevelt, 
Arizona  and  the  Recall  of  the  Judiciary  {Outlook,  XCVIII,  378-379);  E. 
Root,  The  perils  of  the  judicial  recall  {Case  and  Comment,  XVIII,  308-313); 
D.  E.  Wilcox,  Government  by  all  the  People  (1912),  ch.  xxvi;  E.  P.  Oberholt- 
zer,  The  Referendum  in  America  (1911),  ch.  xxiii;  W.  L.  Ransom,  Majority 
Ride  and  the  Judiciary  (191 2),  ch.  v;  Seti.  Docs.,  62  Cong.,  i  Sess.,  Nos. 
99,  100. 

Judges  as  Legislators:  B.  Coxe,  The  Judicial  Power  and  Unconstitu- 
tional Legislation  (1893),  part  ii;  J.  B.  Thayer,  Origin  and  History  of  the 
American  Doctrine  of  the  Right  of  the  Courts  to  declare  Acts  of  the  Legislature 
Unconstitutional  {Harvard  Law  Review,  VTI);  S.  E.  Baldwin,  The  American 
Judiciary  (1905),  chs.  v-vii;  Beard  and  Shultz,  The  Initiative,  Referendum 
and  Recall  (191 2),  Introduction;  Monroe  Smith,  Judge-Made  Constitjdional 
Law  {Van  Norden's  Magazine,  1907);  T.  M.  Cooley,  Constitutional  Limita- 
tions (1903).  chs.  iv,  vii;  A.  B.  Hart,  Actual  Government  (rev.  ed.,  1908), 
§§  78,  145;  W.  L.  Ransom,  Majority  Ride  and  the  Judiciary  (191 2),  ch.  vi; 


§§347,348]      Choice  of  Federal  Judges  427 

J.  Bryce,  Studies  in  History  and  Jurisprudence  {Am.  Hist.  Rev.,  IV); 
S.  G.  Arnold,  History  of  Rhode  Island  (1859),  II,  ch.  24;  A.  de  Tocqueville, 
Democracy  in  America  (183 5- 1840),  I,  ch.  vi. 

347.  Choice  of  Federal  Judges 

In  the  Federal  Convention  of  1787,  election  of  the  federal 
judicial  officers  by  popular  vote  was  not  even  mentioned.  The 
framers  of  the  constitution  followed  both  Enghsh  and  Colonial 
precedents  in  providing  for  the  appointment  of  the  judges; 
but  they  were  not  unanimous  as  to  who  should  have  the  appoint- 
ing power.  Of  the  thirteen  states  of  that  time,  six  chose 
judges  by  the  state  legislature;  one  united  the  executive 
and  the  legislature  in  the  choice;  three,  Massachusetts,  Mary- 
land, and  Delaware,  lodged  this  power  in  the  governor  with 
consent  of  the  council;  in  one,  New  York,  the  Council  of  Ap- 
pointment acted.  In  a  majority  of  the  states  judges  had  life 
tenure,  so  that  direct  popular  control  could  not  be  exercised.^ 

Several  of  these  methods  of  appointments  were  reflected  in 
the  debates  in  the  Federal  Convention,  ^ —  such  as  joint  action 
of  two  houses,  appointment  by  the  Senate,  appointment  by 
the  President,  or  by  the  President  with  the  advice  and  con- 
sent of  the  Senate,  which  last  method  was  finally  adopted. 
Appointment  by  the  legislature  was  opposed  upon  the  ground 
that  such  a  selection  would  make  the  judicial  department  too 
dependent  upon  Congress;  while  the  President  alone  was  sup- 
posed to  be  ignorant  of  the  qualifications  of  the  candidates  of 
the  different  states,  and  might  not  have  sufiicient  regard  for 
the  proper  geographical  distribution  of  the  judges.  Popular 
control,  here  too,  was  still  further  removed  by  giving  to  federal 
judges  a  tenure  of  oflSce  during  "good  behavior." 

348.  Popular  Election  of  State  Judges 
While  no  change  has  been  made  in  the  selection  of  federal 
judges,  most  of  the  states  have  given  the  choice  of  the  judiciary 

*  Schouler,  James,  Constitutional  Studies,  pp.  64,  65. 

2  Madison,  Journal  of  Constitutional  Convention  (Scott  ed.),pp.  108,  109, 
157,  376,  406,  407,  447,  458,  593,  658. 


428  Restraints  on  Judicial  Officers         [§  349 

directly  to  the  voters.  This  change  followed  in  the  wake  of 
the  democratization  of  the  executive  branch  of  the  state  govern- 
ments. In  181 6  the  constitutional  convention  of  Indiana  pro- 
vided that  the  highest  judicial  officers  should  be  appointed  by 
the  governor,  but  left  the  lower  judges  to  popular  choice.  In 
1832  Mississippi  declared  boldly  for  the  selection  of  all  judicial 
officers  by  the  voters,  and  between  1822  and  1835  Missouri 
worked  gradually  in  the  same  direction.^  Although  this  move- 
ment was  viewed  with  alarm  by  many,  such  rapid  progress  was 
made  in  popular  election  that  between  1846  and  1853  no  fewer 
than  thirteen  states  recognized  the  elective  principle.  Likewise 
the  life  tenure  was  so  obnoxious  to  the  new  democracy  that 
the  term  was  reduced  to  six,  seven,  or  eight  years  in  most  states.^ 
At  the  present  time  less  than  one-third  of  the  states  in  the 
Union  limit  in  any  way  the  popular  choice  of  all  judicial  officers, 
while  life  tenure  has  been  abolished  in  all  but  five  states.' 

349.  Contempt  Proceedings 

Any  person  who  interferes  with  the  orderly  procedure  of  a 
court  is  guilty  of  contempt,  and  the  punishment  of  such  actions 
usually  belongs  exclusively  to  the  court  offended,  although  it 
has  been  held  frequently  that  a  court  of  superior  jurisdic- 
tion may  on  this  point  review  the  decision  of  a  court  of  inferior 
jurisdiction.^  The  Penal  Law  of  New  York  enumerates  the 
following  disturbances  which  constitute  contempt: 

I.  Disorderly,  contemptuous,  or  insolent  behavior  commit- 
ted during  the  sitting  of  the  court  in  its  immediate  view  and 
presence,  tending  to  interrupt  its  proceedings  or  to  impair  the 
respect  due  to  its  authority;  (2)  behavior  of  like  character 
committed  in  the  presence  of  a  referee  or  referees  or  in  the  pres- 
ence of  a  jury  while  sitting;  (3)  breach  of  peace,  noise,  or  other 
disturbances  directly  tending  to  interrupt  the  proceedings  of  a 
court,  jury,  or  referee. 

^  Schouler,  James,  Constitutional  Studies,  pp.  286,  287. 
^  Merriam,  C.  E.,  American  Political  Theories,  pp.  198,  199. 
'  Schouler,  James,  Constitutional  Studies,  pp.  289,  290. 
*  Bouvier,  J.,  Law  Dictionary  (1894),  vol.  i,  p.  389. 


§  35o]  Protection  of  Courts  429 

The  court  also  has  an  inherent  right  to  enforce  obedience  to 
its  order  or  processes  and  any  person  refusing  to  obey  the  same 
is  guilty  of  contempt.  The  Penal  Law  of  New  York  recognizes 
the  following  forms  of  contempt  arising  from  such  refusal. 

(i)  Wilful  disobedience  to  the  lawful  process  or  other  man- 
date; (2)  resistance  wilfully  offered  to  its  lawful  process  or 
other  mandate;  (3)  contumacious  and  imlawful  refusal  to  be 
sworn  as  a  witness,  or,  after  being  sworn,  to  answer  any  legal 
and  proper  interrogatory. 

360.  Protection  of  Courts  Against  Bribery 

Special  care  is  taken  to  guard  the  courts  from  improper  influ- 
ences of  persons.  In  nine  states  the  bribery  of  any  office  holder, 
whether  accomplished  or  attempted,  constitutes  a  felony;  while 
a  still  larger  number  of  state  constitutions  provides  that  a 
person  convicted  of  such  bribery  shall  be  disfranchised.^  The 
Penal  Law  of  New  York  provides  that:  "A  person  who  gives  or 
offers,  or  causes  to  be  given  or  offered,  a  bribe,  or  any  money, 
property  or  value  of  any  kind,  or  any  promise  or  agreement 
therefor,  to  a  judicial  officer,  juror,  referee,  arbitrator,  appraiser 
or  assessor,  or  other  person  authorized  by  law  to  hear  or  deter- 
mine any  question,  matter,  case,  proceeding,  or  controversy, 
with  intent  to  influence  his  action,  vote,  opinion,  or  decision 
thereupon,  is  punishable  by  imprisonment  for  not  more  than 
ten  years,  or  by  fine  of  not  more  than  five  thousand  dollars,  or 
both."  -  The  law  further  provides  that  a  person  who  influences 
or  attempts  to  influence  improperly  in  any  manner  a  juror 
in  a  civil  or  criminal  action  is  guilty  of  a  misdemeanor.  Also 
a  person  who  "procures  a  person  drawn  or  notified  to  attend 
as  a  trial  juror,  to  take  gain  or  profit  .  .  .  forfeits  ten  times 
the  sum,  or  ten  times  the  value  of  that  which  was  taken,  to  the 
party  aggrieved  thereby;  and  is  liable  to  that  party  for  his 
damages  sustained  thereby;  besides  being  subject  to  the  pun- 
ishment prescribed  by  law."  ^ 

1  See  above,  p.    175.       ^  Cook,  J.  T.,  Penal  Law  (1910),  sees.  376,  377. 
'  Cook,  J.  T.,  Penal  Law,  (1910),  sec.  371. 


430  Restraints  on  Judicial  Officers  [§§351,352 

351.  Relation  of  Judges  to  Questions  of  Policy 

The  general  tendencies  shown  in  this  change  from  an  appoint- 
ive to  an  elective  judiciary  should  be  noted.  Judicial  ofl&cers 
are  conventionally  not  regarded  as  authorized  to  determine 
poUcy;  in  fact  some  authorities  incline  to  the  view  that  those 
judges  are  the  best  who  exercise  Httle  discretion  and  are  almost 
wholly  bound  by  precedent.  The  popular  election  theory  goes 
the  other  way:  since  the  law  is  an  expression  of  pubHc  pohcy,  its 
construction  must  necessarily  deal  with  pubHc  pohcy.  Where 
the  people  are  seeking  to  establish  a  new  poHcy  and  courts 
assume  to  interpret  law  in  such  a  way  as  to  defeat  this  end,  it 
is  entirely  consistent  with  constitutional  government  to  provide 
some  method  of  bringing  the  courts  into  harmony  with  the  spirit 
of  the  institution. 

Generally  speaking,  the  issues  before  judicial  tribunals 
affect  private  interests,  public  policy  entering  only  as  a  second- 
ary consideration.  Hence  they  are  to  be  decided  in  accord- 
ance with  custom  and  the  settled  principles  of  justice  and 
equity.  The  arbitration  of  these  cases  requires  only  that  the 
tribunal  shall  be  judicially  minded.  Political  parties  usually 
recognize  this  primary  qualification  by  placing  in  nomination 
the  candidates  whose  judicial  record  is  unquestioned;  in  fact, 
fusion  among  parties  in  judicial  nominations  is  common. 
When  partisan  judicial  candidates  are  nominated,  frequently 
a  separate  independent  judicial  ticket  is  put  up  through  peti- 
tion, and  may  be  successful  at  the  general  election. 

352.  Relation  of  Judges  to  Modern  Social  Questions 
This  same  tendency  to  ignore  politics  in  choosing  judges  is 
recognized  in  the  appointment  of  federal  judges;  for  the  Presi- 
dent not  unfrequently  appoints  as  judges  of  the  federal  courts 
men  who  are  in  the  party  opposed  to  him.  But  notwithstand- 
ing the  usual  doctrine  that  judges  should  not  be  moved  by 
politics  in  their  decisions  and  that  the  voters  should  insist  upon 
a  non-partisan  judicial   ticket,   judges  necessarily  are  influ- 


§3531  Recall  of  Judges  431 

enced  by  ideas  of  expediency  and  considerations  of  policy  in 
decisions  which  require  the  construction  of  laws  that  have  been 
made  a  subject  of  partisan  issue.  It  must  be  borne  in  mind 
that  our  social,  industrial,  and  economic  relations  are  under- 
going rapid  changes;  that  these  changes  have  caused  present 
ideals  of  justice  and  welfare  to  differ  widely  from  any  literal 
interpretation  of  older  constitutions,  statutes,  and  precedents. 
Particularly  in  those  economic  relations  upon  which  there  are 
common-law  doctrines  and  precedents,  judicial  decisions  show 
a  lack  of  harmony  with  the  conditions  of  the  times. 

Take  the  simple  case  of  the  relation  between  employer  and 
employee  with  regard  to  responsibility  for  accidents.  Wherever 
this  relation  has  not  been  changed  by  constitutional  amendment, 
the  common-law  doctrine  as  laid  down  by  the  judges,  such  as 
"assumed  risks,"  "contributory  negligence,"  and  "fellow  serv- 
ant," have  governed  later  decisions,  and  sometimes  have 
been  assumed  to  be  superior  to  any  state  constitutions.  There 
are  many  instances  of  the  personal  views  of  judges  or  of  a  slav- 
ish following  of  precedent  standing  in  the  way  of  an  evident 
social  need  which  has  been  expressed  in  statute  law,  and  upon 
judicial  construction  the  law  has  not  been  permitted  to  reach 
its  purpose;  also  instances  of  judges  standing  in  the  way  of  a 
new  adaptation  of  the  common  law  to  meet  the  needs  of 
new  social  conditions.  Under  such  circumstances,  given  an 
indefinite  tenure,  there  can  be  only  one  result;  viz.,  a  demand 
for  measures  of  social  relief  which  will  reach  the  personnel  of 
the  bench. 

363.  Recall  of  Judges 

The  recall  of  judges  has  been  proposed  as  a  means  of  making 
the  courts  conform  to  modern  ideals  of  public  welfare.  It  is 
urged  that  the  recall  will  impair  the  independence  of  courts. 
And  there  is  a  spirit  of  conservatism  which  has  held  to  the 
appointive  system  in  the  nation  and  in  several  states  —  which 
has  retained  life  tenure  during  good  behavior  in  some  instances 
and  a  long  tenure  in  others,  and  which  aims  to  divorce  judicial 


432  Restraints  on  Judicial  Officers         [§353 

nominations  from  partisan  control.  This  conservatism  has 
held  back  against  the  demand  to  introduce  the  recall.  Congress 
in  191 1  passed  a  resolution  for  admitting  Arizona  to  the  Union 
upon  the  condition  that  a  provision  of  the  new  constitution  of 
Arizona  which  provided  for  subjecting  judicial  as  well  as  other 
elective  ofl&cers  to  this  measure  of  control  be  submitted  to  the 
voters  of  that  state,  but  President  Taft  vetoed  the  resolution 
for  the  following  reasons: 

"The  executive  and  legislative  branches  are  representative 
of  the  majority  of  the  people  which  elected  them  in  guiding 
the  course  of  the  government  within  the  limits  of  the  consti- 
tution. They  must  act  for  the  whole  people,  of  course,  but  they 
must  properly  follow,  and  usually  ought  to  follow,  the  views  of 
the  majority  which  elected  them  in  respect  to  the  governmental 
policy  best  adopted  to  secure  the  welfare  of  the  whole  people. 

"But  the  judicial  branch  of  government  is  not  representative 
of  a  majority  of  the  people  in  any  such  sense,  even  if  the  mode 
of  selecting  judges  is  by  popular  election.  In  a  proper  sense, 
judges  are  servants  of  the  people;  that  is,  they  are  doing  the 
work  which  must  be  done  for  the  government,  and  in  the  inter- 
ests of  all  these  people,  but  it  is  not  work  in  the  doing  of  which 
they  are  to  follow  the  will  of  the  majority  except  as  that  is 
embodied  in  statutes  lawfully  enacted  according  to  constitu- 
tional limitations.  They  are  not  popular  representatives.  On 
the  contrary,  to  fulfil  their  office  properly,  they  must  be  inde- 
pendent. They  must  decide  every  question  which  comes  before 
them  according  to  law  and  justice." 

Viewing  the  proposal  as  a  judge  of  long  experience  President 
Taft  sees  grave  dangers  of  abuse.  "Could  there  be  a  system 
more  ingeniously  devised  to  subject  judges  to  momentary 
gusts  of  popular  passions  than  this?  We  cannot  be  blind  to 
the  fact  that  often  an  intelligent  and  respectable  electorate 
may  be  so  aroused,  upon  an  issue  that  it  will  visit  with  condem- 
nation the  decision  of  the  just  judge,  though  exactly  in  accord- 
ance with  the  law  governing  the  case,  merely  because  it  afifects 
unfavorably  their  contest.     On  the  instant  of  an  unpopular 


§354]  Argument  for  Recall  433 

ruling,  while  the  spirit  of  protest  has  not  had  time  to  cool,  and 
even  while  an  appeal  may  be  sustained,  he  is  to  be  haled  before 
the  electorate  as  a  tribunal,  with  no  judicial  hearing,  evidence, 
or  defence,  and  thrown  out  of  office  and  disgraced  for  life  be- 
cause he  has  failed  in  a  single  decision,  it  may  be,  to  satisfy  the 
people." 

In  answer  to  the  claim  that  the  recall  will  be  rarely  used,  he 
says:  "Then  why  adopt  a  system  so  full  of  danger?  But 
it  is  a  mistake  to  suppose  that  such  a  powerful  lever  for  influ- 
encing decisions  and  such  an  opportunity  for  vengeance  because 
of  adverse  ones  will  be  allowed  to  remain  unused." 

354.  Argument  for  Recall  as  a  Method  of  Control 

The  constitution  of  any  state  after  it  has  been  once  recognized 
by  Congress  may  be  amended  to  suit  the  people,  and  therefore 
the  veto  of  the  President  above  referred  to  is  said  to  be  entirely 
personal  and  academic.  Judicial  recall  had  already  been  made 
constitutional  in  Oregon;  and  in  California,  a  similar  amend- 
ment was  accepted  by  the  voters  in  191 2.  While  there  is  as 
yet  little  experience  in  which  to  repose  a  judgment,  those  who 
advocate  the  measure  say  that  from  every  evidence  at  hand, 
from  the  experience  of  states  and  municipalities  where  the 
recall  is  used,  and  considering  the  popular  attitude  of  conserva- 
tism toward  the  courts,  no  danger  to  good  government  is  to  be 
expected.  A  large  number  of  legal  questions  rests  almost  en- 
tirely on  considerations  of  public  policy,  which  a  judge  must 
take  into  account.  In  case  his  decision  be  such  as  to  defeat 
the  purpose  of  a  law  he  should  be  subject  to  recall.  Questions 
pertaining  to  corporations,  labor,  race,  religion,  and  morality; 
questions  growing  out  of  new  statutes  designed  and  passed  to 
change  the  established  order,  but  which  might  be  decided  in 
a  manner  to  nullify  the  acts  —  these  questions,  it  is  thought, 
might  warrant  the  use  of  the  recall  when  the  judge  places 
himself  squarely  against  public  opinion  with  respect  to  social 
welfare  needs,  as  expressed  by  a  vote  of  a  majority  of  the  elec- 
torate. In  fact  it  is  said  it  would  be  impossible  for  an  aggrieved 
29 


434  Restraints  on  Judicial  Officers  [§§355,356 

party  having  only  private  issues  before  the  court  to  be  able  to 
marshal  a  sufficient  number  of  voters  to  put  a  recall  into  opera- 
tion unless  the  decision  was  so  glaringly  unjust  as  to  threaten 
the  rights  of  the  community. 

Mr.  Roosevelt  in  191 2  proposed  a  new  remedy  and  gave  it 
such  publicity  that  it  became  a  partisan  issue;  viz.,  the  recall 
not  of  judges  but  of  judicial  decisions.  The  proposal  is  this: 
that  in  case  a  judge  or  a  "court  may  decide  a  law  to  be  uncon- 
stitutional, then  upon  petition  of  a  requisite  number  of  voters 
the  question  of  constitutionality  passed  upon  may  be  voted 
on  at  the  next  general  election."  ^  This  remedy  is  not  in  the 
nature  of  a  recall,  but  of  a  mandatory  referendum. 

355.  Publicity  of  Coiu-t  Proceedings 

No  public  official  is  so  open  to  pubHc  scrutiny  as  the  judge. 
Twenty-nine  of  the  state  constitutions  provide  that  all  courts 
shall  be  open  to  the  public.^  Provision  is  made  for  court 
stenographers,  court  clerks,  and  the  publication  of  proceedings 
in  a  manner  prescribed  by  law.  Frequently  full  reports  of 
judicial  proceedings  are  pubhshed  in  the  papers,  while  all  the 
decisions  of  the  state  supreme  courts  are  printed  and  widely 
circulated. 

356.  Right  of  Judicial  Appeals 

The  responsibility  of  judges  is  further  determined  through 
the  right  of  appeal  to  higher  courts,  who  rarely  exercise  original 
jurisdiction.  In  the  case  of  the  federal  courts  the  small  original 
jurisdiction  of  the  Supreme  Court  is  stated,  while  in  all  other 
cases  this  court  has  appellate  jurisdiction  with  such  exceptions 
as  Congress  shall  make.  In  most  states,  also,  the  highest 
court  rarely  exercises  original  jurisdiction,  though  its  appellate 
power  is  usually  limited  to  a  review  of  questions  of  law  only. 
On  the  other  hand,  the  courts  immediately  below  the  court  of 
last  resort  have  the  power  to  review  the  evidence  upon  appeal 
from  the  decision  of  the  lower  court.    This  review  is  based 

'  Outlook,  vol.  100,  pp.  619,  620. 

2  Stimson,  F.  J.,  Federal  and  State  Constitutions,  sec.  70,  p.  149. 


§§  357, 35^]  Restraint  of  Courts  435 

upon  exceptions  taken  to  the  decision  of  judges  by  the  counsel 
of  the  litigant  during  the  trial.  Thus  the  record  of  every  judge 
in  the  lower  courts  is  on  trial;  for  his  judicial  qualifications  are 
determined  by  the  percentage  of  cases  in  which  his  decisions 
are  sustained  by  the  higher  courts. 

357.  Removal  of  Judges 

The  action  of  the  judges  is  still  further  controlled  through 
processes  of  removal  from  ofiice  by  action  of  the  legislature  or 
the  executive.  The  causes  for  removal  are  usually  specified 
in  the  constitution  and  have  been  enumerated  in  a  preceding 
chapter.  The  usual  method  is  as  follows:  The  lower  house 
presents  reasons  for  impeachment  while  the  upper  house  sits 
as  a  court  of  trial.  Usually  a  two-thirds  vote  of  all  the  members 
of  the  upper  house  is  necessary  for  conviction.^  Many  other 
methods  of  removal,  however,  prevail.  In  New  York,  judges 
of  the  Court  of  Appeals  may  be  removed  by  the  concurrent 
resolution  of  both  houses,  a  two-thirds  vote  in  each  house  being 
necessary.  All  other  judges,  with  minor  exceptions,  may  be 
removed  by  a  two-thirds  vote  of  the  Senate  upon  the  recom- 
mendation of  the  governor.^  In  other  states  they  are  removed 
by  a  majority  vote  of  elected  members  of  the  legislature  in 
joint  committee;  or  by  the  governor  upon  the  address  of  both 
houses  of  the  legislature.^ 

358.  Restraint  of  Courts  by  Bill  of  Rights 

Judicial  ofiicers  are  concerned  with  the  protection  of  personal 
and  property  rights,  which,  at  the  time  of  the  formation  of  the 
state  governments,  were  looked  upon  as  natural  rights  with 
which  no  governmental  agent  had  a  right  to  interfere.  They 
were,  therefore,  enumerated  m  the  constitutions  in  the  form 
of  a  bill  of  rights.  Furthermore,  modes  of  protecting  these 
rights,  as  evolved  in  England,  such  as  trial  by  jury,  were  also 

'  Stimson,  F.  J.,  Federal  and  State  Constitutions,  sec.  262,  p.  231. 

2  N.  Y.  Const.,  art.  VI,  sec.  11. 

^  Stimson,  F.  J.,  Federal  and  Slate  Constitutions,  sec.  265,  p.  232. 


436  Restraint  of  Judicial  Officers  [§358 

specified  among  these  same  inalienable  rights.  It  is  usually 
further  provided  that  such  enumeration  does  not  mean  a  denial 
of  such  natural  rights  as  were  not  specified  in  the  constitution. 
Among  these  rights  are  the  right  to  personal  security,  the  right 
to  liberty,  and  the  right  to  property. 

The  constitution  of  the  United  States  forbids  the  federal 
courts  to  issue  general  writs  of  search;  and  for  a  capital  or 
otherwise  infamous  crime  requires  a  presentment  or  indictment 
of  a  grand  jury,  except  in  time  of  war;  relieves  the  citizen  from 
being  put  in  jeopardy  of  life  or  limb  twice  for  the  same  offence, 
from  being  deprived  of  life,  liberty,  or  property  without  due  pro- 
cess of  law;  from  having  his  private  property  taken  without  just 
compensation.  In  all  criminal  prosecutions  the  accused  must 
be  granted  a  speedy  and  pubHc  trial  in  the  district  where 
the  crime  was  committed;  he  must  be  informed  of  the  nature 
and  cause  of  the  accusation;  must  be  confronted  with  the  wit- 
nesses against  him,  and  has  power  to  compel  attendance  of 
witnesses  in  his  favor,  and  the  right  to  have  assistance  of 
counsel  for  his  defence.  In  all  civil  suits  at  common  law  where 
the  value  in  the  controversy  exceeds  twenty  dollars,  the  right 
of  trial  by  jury  must  be  preserved;  and  in  the  trial  of  all  crimes 
except  impeachment,  trial  by  jury  in  the  state  where  such  crime 
is  committed  shall  be  preserved.  Finally,  excessive  bail, 
excessive  fines,  and  cruel  and  unusual  pimishments  are 
forbidden. 

The  state  constitutions  abound  in  general  provisions  declar- 
ing the  right  to  freedom,  equality,  life  and  liberty,  property, 
labor,  reputation,^  etc. 

Nearly  all  of  the  state  constitutions  provide  that  a  person 
ought  to  have  a  certain  remedy  at  law  for  all  injuries  to  person, 
property,  and  character;  to  obtain  justice  freely  without  being 
obliged  to  purchase  it,  and  without  delay.  In  all  states  but 
New  York  the  people  are  in  terms  protected  against  unreason- 
able search  and  seizure.  In  most  states  the  right  to  trial  by 
jury  is  held  inviolate  with  certain  exceptions.      Imprisonment 

^  Stimson,  F.  J.,  Federal  and  State  Constitutions,  sees.  10-15,  pp.  127-129. 


§  358]  Restraint  of  Courts  437 

for  debt  is  absolutely  forbidden  in  many  states,  while  certain 
property  is  exempted  from  attachment.  No  property  can 
be  taken  for  pubHc  use  without  just  compensation,  while  no 
property  can  be  taken  for  private  use  without  the  consent  of 
the  owner. 

Rights  of  persons  accused  of  crime  are  specifically  guarded 
before  trial,  during  trial,  and  after  trial.  Before  the  trial  the 
accused  has  the  right  to  hear  the  cause  and  nature  of  the  accusa- 
tion, the  right  to  be  admitted  to  reasonable  bail  with  certain 
exceptions,  the  right  to  a  writ  of  habeas  corpus,  and  the  right 
to  indictment  only  by  a  grand  jiury  when  charged  with  offenses 
punishable  by  imprisonment  for  life,  or  with  infamous  crime 
or  felony. 

His  rights  during  the  trial  are  similarly  protected.  Nearly 
all  of  the  state  constitutions  provide  that  no  person  can  be 
deprived  of.  life,  liberty,  or  property,  except  by  due  process  of 
law,  or  by  the  law  of  the  land  or  by  the  judgment  of  his  peers. 
Most  of  the  states  guarantee  the  right  to  a  pubUc  trial  by  an 
impartial  jury.  Provision  is  further  made  that  conviction 
follows  only  a  unanimous  verdict,  or  one  by  five-sixths  or  two- 
thirds  of  the  jurors.  All  constitutions  save  that  of  Virginia 
provide  that  a  person  may  be  defended  by  himself  or  by  coun- 
sel. The  accused  is  entitled  to  enforce  by  compulsory  process 
the  attendance  of  witnesses  in  his  behalf  and  is  protected 
against  being  compelled  to  give  evidence  against  himself; 
nor  can  he  be  put  twice  in  jeopardy  of  life  or  limb  for  the  same 
offence. 

Even  after  trial  the  accused,  whether  convicted  or  not,  is 
entitled  to  certain  rights.  Excessive  fines  and  costs,  and  unusual 
punishments,  are  forbidden,  and  no  person  can  be  compelled 
to  pay  costs  until  after  conviction.  No  person  can  be  pun- 
ished but  by  virtue  of  law  already  established,  and  by  the 
constitutions  of  most  states  no  conviction  shall  work  corrup- 
tion of  blood  or  forfeiture  of  estates.  In  a  limited  number  of 
cases  only  is  forfeiture  permitted. 


Part  VI 
Conclusion 


CHAPTER  XXXIV 

THE  OUTLOOK  FOR  DEMOCRACY 

359.  The  Increasing  Demand  that  the  People  shall  Govern 

To  the  writer  it  has  seemed  apparent  that  one  of  the  most 
inspiring  movements  in  human  history  is  now  in  progress  — 
inspiring  not  on  account  of  the  splendor  of  its  trappings,  but 
because  the  movement  itself  is  a  part  of  the  everyday  thought 
of  a  people  who  are  striving  to  realize  the  highest  co-operative 
ideals  that  have  been  developed  in  centuries  past.  Nor  is  this 
the  inspiration  of  a  local  group  or  sect.  A  wave  of  organized 
democracy  is  sweeping  around  the  world,  based  on  a  broader 
intelligence  and  a  more  enlightened  view  of  civic  responsibihty 
than  has  ever  before  obtained. 

The  theory  that  government  exists  for  common  welfare,  that 
a  public  office  is  a  public  trust,  is  as  old  as  is  the  conflict  be- 
tween local  self-government  and  absolutism.  But  responsi- 
bility for  making  this  theory  a  vital  principle  in  an  empire  whose 
sovereignty  is  abstractedly  conceived  as  residing  in  a  hundred 
million  souls  and  in  which  every  officer  of  government  is  con- 
stitutionally a  servant  has  not  been  considered  with  enough 
seriousness  by  the  average  citizen. 

360.  A  Factor  of  Popular  Control  Overlooked 

So  long  as  forms-  of  monarchy  obtained,  so  long  as  there  was 

an  officer  to  impersonate  sovereignty,  responsibility  for  lack  of 

regard  for  the  welfare  of  the  people  was  made  a  personal  matter. 

In  popular  thought  the  King  was  the  one  to  whom  application 


§361]  Dangers  to  the  Republic  439 

should  be  made  for  the  abatement  of  abuses  of  power.  The 
King  was  responsible  not  for  the  act  of  the  officer,  but  for  per- 
mitting the  person  guilty  of  malfeasance  to  remain  in  office. 
The  King  was  the  one  to  satisfy  the  popular  demand  for  respon- 
sive and  responsible  government.  Failure  to  observe  this 
principle  meant  in  the  end  the  dethronement  of  the  King.  By 
reason  of  this  fact  democracy  has  frequently  fared  better  under  a 
monarchy  than  under  a  republican  form  of  political  organization. 
When  monarchy  as  a  form  of  government  was  permanently 
overthrown,  when  there  was  no  one  to  impersonate  sovereignty 
as  distinct  from  those  who  were  required  to  render  service, 
when  the  responsibilities  of  sovereignty  were  lodged  in  citizen- 
ship, the  enthusiasm  with  which  the  republican  form  of  govern- 
ment was  grasped  as  a  solution  for  past  ills  caused  the  people 
to  lose  sight  of  the  need  for  provisions  which  have  since  been 
found  to  be  essential  to  the  exercise  of  popular  sovereignty. 
Therefore  as  our  society  has  become  more  complex,  citizenship 
has  felt  itself  farther  and  farther  removed  from  the  government 
and  less  able  to  enforce  responsibility  upon  the  electorate  as 
the  agency  for  expressing  opinion  and  upon  the  officer  as  public 
servant.  Inability  to  hold  governing  agents  to  their  responsi- 
bility is  the  defect  to  which  citizens  have  more  recently  been 
addressing  themselves.  It  is  to  cure  this  defect,  to  put  into 
the  hands  of  the  popular  sovereign  the  instruments  necessary 
for  effectively  dealing  with  "the  government,"  that  much  of 
the  present  movement  has  for  its  object  —  a  movement  which 
in  America  means  a  new  alignment  of  political  forces  as  well 
as  a  new  direction  given  to  partisan  activities. 

361.  Dangers  which  Threaten  the  Republic 

It  was  thought  that  the  story  of  changes  in  political  organ- 
ization and  method  already  effected  should  be  told  in  such  a 
manner  as  to  give  a  historic  background  for  the  consideration 
of  present-day  problems.  This  seems  especially  desirable  in 
view  of  the  despondency  which  has  been  felt  by  many  citizens 
who  have  a  high  sense  of  civic  responsibility  and  who  are  willing 


440  Outlook  for  Democracy  [§  361 

to  go  to  any  length  in  helping  to  make  our  political  institutions 
conserve  the  best  interests  of  society.  The  need  for  perspective 
is  shown  in  the  character  of  expression  which  has  been  given  to 
thought  on  the  subject  by  every  class.  On  the  one  hand  are 
found  those  who  are  strongly  moved  by  patriotic  impulses, 
but  who  in  their  philosophy  of  reform  presume  that  the  only 
cure  for  conditions  which  are  conceived  to  be  present-day  evils 
is  to  be  found  in  open  violence.  Typical  of  the  dissatisfaction 
of  the  less  patient  or  the  emotional  citizen  as  a  class  is  the 
following  taken  from  a  recent  publication: 

"Democracy  seethes  in  me.  I  demand  expression.  I  de- 
mand it  for  myself  and  for  all  those  whose  existence,  Uke  mine, 
is  cooped  up  and  reduced  to  a  nothingness  because  every  step, 
all  initiative,  is  hindered  by  settled  conditions  whose  fitness  we 
deny,  by  a  maze  of  regulation  for  human  life  which  has  been 
foisted  upon  this  generation  by  its  ancestors  and  has  become 
folly  by  the  progress  and  changes  of  which  our  ancestors  did 
not  dream  and  in  which  they  had  no  part.  .  .  .  Democracy 
seethes  rebeUiously  in  miUions;  inarticulate,  dumb,  because 
no  simple  word  can  render  all  the  demands  for  participation 
in  the  fulness  of  Hfe,  as  life  might  be  lived  in  this  age,  and  much 
less  can  formulate  the  means  by  which  these  demands  may  be 
satisfied."  The  remedy  proposed  by  the  writer  of  this  screed 
is,  "the  repeal  of  ordinances,  statutes  and  federal  laws,  as  well 
as  harmful  provisions  in  constitutions  and  charters;  the  revision 
and  codification  of  what  remains;  the  organization  of  conscience 
to  take  the  place  of  the  present  judiciary  in  city,  county,  state, 
and  Union." 

The  dissatisfaction  felt  by  those  who  have  been  highly  suc- 
cessful in  private  undertakings  and  who  are  generally  optimistic 
(but  whose  keen  sense  of  public  duty  has  put  them  on  inquiry) 
finds  ex-pression  in  the  remarks  of  a  prominent  New  York  lawyer. 
"Four  years  ago,"-  he  said,  "I  moved  with  my  family  to  this 
city.  Prior  to  that  time  we  had  lived  in  a  small  New  Jersey 
town,  where  we  took  an  active  part  in  public  affairs.  We 
found  pleasure  in  the  thought  that  we  were  doing  something 


§362]  Limiting  Conditions  441 

for  the  community  —  that  we  were  contributing  our  share  to 
the  welfare  of  those  around  us.  Now  all  is  changed.  We  enjoy 
the  benefits  of  living  in  this  great  city,  —  its  business  and  pro- 
fessional opportunities,  its  social  advantages;  we  share  in  its 
comforts  and  conveniences;  our  lives,  our  health,  our  properties 
are  cared  for  by  the  government;  we  personally  profit  from  its 
schools,  its  libraries,  its  art  galleries,  its  museums;  we  ride  in 
its  parks,  drive  over  its  boulevards,  sail  in  its  harbors;  in  fact, 
every  day  we  partake  largely  of  its  benefits,  but  aside  from 
contributing  something  to  the  municipal  treasury,  which  has 
become  the  chief  subject  of  organized  graft,  we  give  nothing  in 
return.  As  a  citizen  I  feel  like  a  criminal;  as  a  voter  I  am 
conscious  of  being  so  ignorant  that  it  is  always  a  question  in  my 
mind  whether  I  may  not  be  doing  more  harm  than  good  by 
casting  an  unintelligent  ballot." 

To  the  natural  inquiry,  "Why  do  you  not  do  something?" 
the  reply  was:  "But  what  can  I  do?  I  go  to  my  ofiice.  My 
clients  have  little  in  common.  Downtown,  my  life  is  full  of 
the  business  of  people  who  seek  my  advice  and  intrust  me  with 
the  protection  of  their  private  interests.  Uptown,  social  life  is 
on  a  personal  plane.  I  am  at  all  times  conscious  of  contact  with 
a  great  number  of  people  whose  thoughts  and  activities  are  de- 
voted to  private  gain  and  personal  enjoyment,  but  I  have  never 
for  a  moment  been  conscious  of  contact  with  this  great  met- 
ropolitan community.  As  I  look  around  me,  the  government, 
social  interests,  all  organized  effort  seems  to  be  directed  toward 
providing  what  is  necessary  for  the  health,  the  comfort,  the  con- 
venience and  happiness  of  those  who  are  best  able  to  care  for 
themselves.  Months  of  careful  thought  have  given  me  no  sug- 
gestion as  to  what  my  first  duty  as  a  citizen  is.  I  have  yet  to  find 
an  opportunity  for  intelligently  considering  the  community's 
needs  and  for  intelligently  performing  the  duties  of  a  citizen." 

362.   A  Condition  to  be  Reckoned  with 

Whatever  the  creed  or  faith  to  which  discontent  may  be 
assigned,  the  fact  of  dissatisfaction  bespeaks  a  condition  which 


442  Outlook  for  Democracy  [§  363 

must  be  reckoned  with.  Many  have  come  to  us  with  a  per- 
spective foreign  to  American  institutions.  In  this  class  are 
almost  all  of  those  who  would  deal  with  the  situation  violently. 
Others  have  come  from  the  farm  or  from  the  small  town  where 
the  full  range  of  community  life  was  constantly  before  them; 
they  now  find  themselves  lost  in  the  city.  Seeing  urban  human- 
ity struggling  against  economic  conditions  that  are  adverse; 
seeing  immorality,  disease,  and  ignorance,  which  citizen  co- 
operation alone  could  remove;  seeing  around  them  the  victims 
of  organized  spoliation  and  social  neglect;  responding  to  social 
impulse  —  they  have  taken  up  the  cause  of  common  wel- 
fare, worked  vigorously  and  patiently  with  the  instruments 
and  agencies  at  hand;  but  while  struggling  for  the  general  good 
have  found  so  little  to  encourage  them  that  from  sheer  mental 
exhaustion  they  have  turned  away  depressed  and  disheartened. 
Clearly  something  more  than  legal  provisions  is  necessary;  the 
problems  of  citizen  sovereignty  are  above  and  beyond  enact- 
ments of  law;  they  have  to  do  with  ascertaining  what  is  need- 
ful for  formulating  proper  opinion,  for  impressing  this  on  the 
electorate,  for  enforcing  it  on  the  ofiicial  class  through  processes 
provided  for  making  the  government  responsive  and  responsible. 

363.  Lessons  to  be  Drawn  from  Local  Self  Government 
When  MetchnikofT  became  interested  in  the  problem  of 
longevity,  his  attention  scientifically  turned  to  the  conditions 
under  which  long-lived  people  had  lived.  A  helpful  perspective 
for  considering  these  discouraging  aspects  of  democracy  is  also 
found  in  the  small  town  —  the  place  where  democracy  seems 
to  have  thrived  best.  When  scientifically  studied  the  small 
town  is  found  to  contain  elements  that  have  been  sacrificed 
in  organizing  on  an  imperial  plan.  In  the  village  community, 
the  small  New  England  towTi,  we  find  a  form  of  culture  which  in 
the  city  is  almost  wholly  absent.  Through  that  much  berated 
medium,  neighborhood  gossip,  by  elbow  touch  at  the  post- 
office,  at  the  corner  grocery,  at  the  church,  at  the  lodge,  at  the 
school  lyceum,  the  needs  of  the  town  are  discussed.     Every 


§364]  "Boss  Rule'*  443 

man,  woman,  and  child  has  a  conscious  part  in  community  life. 
Community  needs  are  common  knowledge;  acts  of  government 
are  carefully  scrutinized  and  reported;  the  whole  town  knows 
every  new  plank  that  is  put  down  by  the  overseer  —  what  was 
the  need  for  it,  where  the  overseer  got  it,  how  much  he  paid 
for  it.  At  the  town  meeting  a  relatively  intelligent  electorate, 
representing  a  relatively  intelligent  citizenship,  comes  together. 
They  consider  what  community  needs  are  dominant,  what 
should  be  immediately  provided  for,  what  may  be  deferred 
or  partially  met.  They  review  the  acts  of  officers,  receive  their 
oral  reports,  listen  to  the  comments  and  suggestions  of 
taxpayers,  levy  contributions  upon  the  community  for  funds 
required,  and  determine  who  shall  be  intrusted  with  the  adminis- 
tration of  the  funds  voted. 

364.   *•  Boss  Rule  "  the  Product  of  Citizen  Neglect 

It  is  also  of  interest  to  note  the  character  of  "organization" 
which,  in  the  commonwealth,  has  taken  the  place  of  the  elbow 
touch  of  the  village  community  —  the  "organization"  which 
in  deprecating  terms  is  so  often  referred  to  as  the  tool  of  "the 
boss."  An  American  political  "boss"  is  commonly  one  of  the 
most  intelligent  and  efficient  citizens  that  we  have.  His  guid- 
ing motive  may  not  be  the  public  welfare,  but  he  has  had  a 
clearer  concept  of  the  essential  factors  of  democracy  than  has 
the  reformer  who  dreams  of  high  statesmanship  in  terms  of 
abstract  morality,  but  who  lacks  the  touch  and  balance  of 
facts  about  the  everyday  life  of  the  people.  "The  boss"  is 
the  only  one  who  makes  it  his  business  to  know  what  is  neces- 
sary to  supply  the  community  needs  which  are  brought  home 
to  him.  He  has  been  the  only  one  who  has  had  a  comprehen- 
sive citizen  programme.  To  the  Tweed  and  other  "graft" 
organizations  New  York  owes  much  that  is  best  in  the  develop- 
ment of  municipal  life.  It  has  been  under  the  rule  of  "the 
organization"  that  Philadelphia  has  developed  practically  all 
that  may  be  considered  the  product  of  a  well-considered  con- 
structive programme.    This  has   not   been    accomplished   in 


444  Outlook  for  Democracy  [§  365 

response  to  ideals  of  public  service  in  the  "organization"  but 
as  a  means  of  getting  the  support  of  those  who  want  public 
service.  It  is  this  that  commends  "the  boss"  to  the  people. 
He  makes  provision  for  systematic  contact  with  citizen  activ- 
ities, citizen  opinion,  citizen  interest  in  order  that  he  may 
have  the  information  necessary  to  win  the  suffrages  of  a  less 
intelligent  electorate,  thereby  obtaining  for  himself  and  for  his 
organization  the  chance  to  exercise  for  partisan  and  personal  ends 
powers  which  carry  with  them  the  use  of  funds  and  properties 
entrusted  to  officers  of  government.  "The  boss"  has  made 
citizenship  his  business.  With  the  reformer,  citizenship  has 
been  only  an  emotion. 

Generally  speaking,  the  business  of  citizens  as  citizens  has 
not  been  seriously  and  intelligently  undertaken  by  those  who  are 
interested  in  the  honest,  efficient,  and  economic  management 
of  public  affairs.  The  most  effective  solution  that  American 
democracy  has  so  far  offered  in  citizen  organization  and  control 
is  domination  by  "the  boss."  Under  past  conditions  popular 
sovereignty  has  been  a  vicarious  reign;  boss  rule  has  been  the 
reality.  The  difference  in  principle  between  North  American 
democracy  and  Spanish  American  democracy  has  been  that  in 
Spanish  America  "the  boss"  has  established  his  office  in  the 
state  house  or  city  hall,  while  in  the  United  States  a  willing  or 
unwilling  tool  of  "the  boss"  has  received  the  suffrage  of  an 
ignorant  electorate,  which  in  turn  has  represented  a  citizenship 
that  is  also  ignorant  of  every  practical  problem  of  government; 
in  the  United  States  the  officer,  as  the  tool  of  a  better  informed 
boss,  has  given  the  stamp  of  approval  to  official  acts  —  the  real 
business  of  the  government  being  done  in  a  private  office  out- 
side of  the  state  house  or  city  hall. 

365.  Reasons  for  Failure  in  Efforts  to  Refonn 

In  partisan  conflicts  citizens  have  spent  millions  of  doUars 
in  what  has  sometimes  been  called  "  Campaigns  of  Education." 
These  sums  have  been  devoted  to  procuring  the  nomination 
and  parading  the  personal  characters  of  candidates  who,  by 


§  366]  Citizen  Activities  445 

one  or  another  group  of  persons,  may  be  thought  to  be  desir- 
able. PubUcity  documents  which  have  been  scattered  broad- 
cast at  private  expense  have  been  very  largely  an  expression  of 
personal  opinion  with  respect  to  candidates  and  about  subjects 
of  which  the  authors  of  these  opinions  know  little.  Candidates 
themselves  have  been  profuse  in  promises  to  do  things  that  under 
present  conditions  cannot  be  done.  The  stock  in  trade  of  the 
successful  campaigner  has  been  well-rounded,  high-sounding 
phrases  which  please  the  ear  but  do  not  bear  critical  analysis. 
Waves  of  reform  have  been  stirred  to  such  heights  as  to  com- 
pletely swamp  one  administration  after  another  by  appeals 
to  prejudice  and  popular  discontent.  After  spending  over 
$400,000  in  this  kind  of  campaigning,  a  reform  party  succeeded 
in  overturning  the  government  in  Philadelphia  in  1900  only 
to  be  hoisted  four  years  later  by  their  own  petard.  Every 
reform  movement  that  has  been  won  by  resort  to  this  kind 
of  appeal  has  been  short  lived. 

Finally,  thinking  men  have  come  to  ask  why,  and  in  their 
thinking  have  concluded  that  before  citizens  can  hope  to  suc- 
ceed in  their  struggle  for  eflficient  government  they  must  become 
as  well  informed  about  simple,  everyday  public  affairs  as  is 
"the  boss."  To  this  end  citizens  are  beginning  to  demand 
concrete  information  about  commimity  needs;  what  the  gov- 
ernment is  doing  to  meet  them;  what  results  are  being 
obtained;  and  what  conditions  are  adverse  to  efficient  and  eco- 
nomic management.  Citizens  are  also  beginning  to  think 
concretely  concerning  methods  of  obtaining  more  exact 
knowledge  about  what  is  going  on. 

366.  Public  Spirit  and  Efficient  Self  Government 
The  obvious  waste  of  private  resources  devoted  to  private 
campaigning  has  caused  public-spirited  men  and  women  to 
devote  time  and  adequate  means  to  obtain  an  accurate 
diagnosis  of  government.  Experts  have  been  employed  by 
privately  supported  citizen  agencies  to  do  for  citizenship  what 
similarly  supported  private  agencies,  in  the  form  of  research 


446  Outlook  for  Democracy  [§  367 

laboratories,  have  done  to  cure  physical  ills.  They  have  sought 
to  obtain  a  scientific  diagnosis  as  a  basis  for  prescription.  From 
palliatives  citizens  have  begun  to  turn  to  preventives.  As  a 
result  of  institutional  research,  communities  are  coming  to  know 
what  are  the  conditions  favorable  to  the  development  of  the 
malignant  pests  which  feed  and  thrive  on  the  body  poHtic. 
By  scientific  research  it  has  been  found  that  the  best  cure  for 
the  malignant  pest  known  as  "the  grafter"  is  to  provide  con- 
ditions favorable  to  the  development  of  beneficial  organisms 
which  carry  on  a  war  of  extermination  against  organisms  that 
are  malignant.  In  the  same  manner  citizens  are  making  it 
their  business  to  see  to  it  that  public  servants  are  provided 
with  an  organization  and  equipment  which  are  adapted  to  use 
in  conserving  welfare  ends. 

367.  The  Omen  of  Woman  Suffrage 
The  people  are  beginning  to  think  more  of  their  own  responsi- 
bility and  less  about  ofl&cial  incompetence  and  infidelity.  One 
of  the  evidences  of  this  fact  is  found  in  the  fast  growing  demands 
for  woman  suffrage.  Mr.  Sidney  Webb,  in  his  appeal  to  the 
English  people  for  the  education  of  the  poor,  urged  that  it  was 
national  folly  to  permit  the  cliildren  of  those  who  had  not  the 
means  to  provide  for  private  education  to  grow  up  in  ignorance, 
since,  as  he  put  it,  by  neglecting  to  train  the  poor  child,  the 
government  was  failing  to  develop  a  human  resource  that  would 
prove  to  be  of  inestimable  value  in  maintaining  industrial 
supremacy  as  well  as  political  independence.  The  same  argu- 
ment is  being  used  with  respect  to  failure  to  utilize  the  interests 
of  women  in  governmental  affairs.  As  has  been  said,  citizen- 
ship is  not  a  matter  of  sex;  it  is  a  question  of  status.  Under 
repubUcan  institutions  the  responsibilities  of  sovereignty  rest 
as  much  upon  women  as  upon  men.  Moreover,  women  are 
quite  as  well  qualified  to  exercise  judgment  and  to  ex-press 
opinion  with  respect  to  subjects  of  welfare  as  are  men.  In 
fact  when  the  full  range  of  governmental  activities  is  taken  into 
account,  they  are  better  informed  about  the  community  needs 


§  368]  Hope  of  Future  447 

which  require  governmental  action  and  the  manner  in  which 
these  needs  are  being  met. 

Here  is  a  resource  for  eflficiency  in  the  discharge  of  citizen 
responsibility,  a  possibility  for  effective  co-operation,  that  has 
not  been  availed  of.  Let  women  accept  seriously  their  re- 
sponsibility for  knowledge  of  the  conditions  which  surround  their 
homes  and  which  have  a  direct  bearing  on  the  health  and  happi- 
ness of  those  who  are  within  their  care  and  keeping;  bring  the 
women  of  each  community  into  active  co-operation  with  the 
officer  who  is  placed  there  to  serve  them  —  with  the  policeman, 
the  inspector  of  health,  tenements,  street  cleaning;  direct  the 
interest  of  women's  organizations  to  those  more  remote  welfare 
institutions,  such  as  public  agencies  devoted  to  the  care  and 
education  of  the  dependent,  the  defective,  and  the  delinquent; 
let  the  women  of  a  commimity  feel  a  direct  responsibility  for 
expenditures  which  relate  to  schools,  libraries,  museums,  baths, 
parks,  playgrounds,  and  gymnasiums  —  and  popular  sovereignty 
will  be  exercised  with  a  vigor  and  intelligence  that  has  proved 
impossible  so  long  as  matters  of  general  welfare  are  left  entirely 
to  men,  whose  time  and  energy  are  consumed  with  the  details 
of  private  business. 

One  of  the  more  significant  recent  developments  is  to  be  found 
in  the  fact  that  the  women  of  the  country  are  awakening  to 
their  duties  and  responsibilities  as  citizens.  This  is  to  be  con- 
sidered as  a  public  gain  separate  and  apart  from  the  question 
as  to  whether  women  shall  take  on  the  added  responsibility 
of  the  electorate. 

368.  The  Hope  of  the  Future 

Notwithstanding  all  of  the  discouragement  that  has  been 
expressed  about  the  manner  in  which  our  government  affairs 
have  been  conducted,  we  can  look  forward  with  confidence  to 
the  future.  In  the  first  place,  citizenship  has  been  aroused; 
a  majority  of  citizens  have  got  away  from  the  idea  that  the 
government  exists  primarily  for  personal  profit.  During  the 
hundred  years  to  1876  the  people  thought  of  the  government 


448  Outlook  for  Democracy  [§  368 

as  an  institution  that  had  been  organized  and  maintained  for 
the  purpose  of  giving  them  something  of  money  value.  The 
government  had  inherited  from  England  a  continent  of  natural 
resources;  it  existed  primarily  to  distribute  public  lands,  to 
give  away  farms,  to  give  away  mines,  to  give  away  corporate 
privileges.  All  of  the  interests  which  dominated  our  political 
society  were  organized  on  the  theory  of  getting  something  out 
of  the  government  for  little  or  nothing.  Citizenship  is  now 
taking  quite  another  view.  This  new  view  is  partly  due  to 
the  fact  that  almost  all  our  national  resources  have  been  re- 
duced to  private  ownership  and  partly  to  the  increasing  pres- 
sure of  social  needs.  As  a  people  we  have  suddenly  awakened 
to  the  thought  that  our  splendid  indifference  to  the  social  value 
of  our  national  inheritance  has  been  a  mistake.  We  are  begin- 
ning to  see  that  the  government  has  a  social  purpose,  and  that 
laissez-faire  should  no  longer  dominate  our  poUtics.  This  idea 
being  first  in  the  minds  of  the  people,  every  interest  demands 
efficiency;  demands  economy  that  will  not  permit  of  the  waste 
of  public  funds  intrusted  to  officers  for  protection;  demands 
that  proper  use  be  made  of  the  properties  and  equipment  which 
have  been  procured  with  public  funds  for  the  purpose  of  con- 
serving health,  for  promoting  education,  for  maintaining  law 
and  order,  for  providing  public  transportation  and  the  other 
facilities  essential  to  the  common  welfare.  With  this  idea 
paramount  in  the  minds  of  the  people,  the  outlook  for  American 
government  is  quite  different  from  any  which  we  have  had 
before;  and  is  in  the  direction  of  the  interests  which  we  may 
call  general  welfare  as  distinct  from  those  interests  which 
are  private  or  personal  in  character. 


CHAPTER  XXXV 

MEANS   STILL   TO  BE   PROVIDED   FOR  MAKING   THE 
POPULAR    WILL    EFFECTIVE 

369.  The  Law  of  Social  Advantage  Dominant 

The  same  motives  are  operating  on  the  minds  of  men  to-day 
as  were  two  thousand  years  ago.  Men  are  still  controlled  by 
physical  wants.  They  are  strongly  moved  by  desires  which 
they  would  satisfy.  It  is  what  the  individual  conceives  to  be 
his  needs  that  causes  him  to  put  forth  effort,  but  in  doing  so 
his  aim  is  to  achieve  his  purpose  at  the  least  expenditure  of 
energy  or  cost  to  himself.  From  considerations  of  individual 
and  common  advantage  men  organize  to  obtain  through  co- 
operation that  which  it  is  more  difScult  or  impossible  to  obtain 
when  working  single-handed.  But  better  organization  and 
broader  association  bring  new  needs,  so  that  at  each  step  new 
adaptations  must  be  made  both  institutionally  and  individually 
as  a  means  of  conserving  common  welfare. 

The  last  century  has  witnessed  wonderful  strides  in  co-opera- 
tive activity.  This  has  been  coincident  with  increased  breadth 
and  complexity  of  organization.  The  old  forms  of  absolutism 
and  hierarchy,  based  on  conquest,  have  given  way  to  organized 
democracy.  Personal  government  has  been  all  but  forgotten. 
Monarchy  has  been  supplanted  by  constitutional  government, 
in  which  citizenship  has  taken  the  place  of  a  personal  sovereign. 
Government  is  now  organized  as  an  incorporated  agency  of 
the  governed  —  all  forms  of  organization,  both  public  and 
private,  in  theory  at  least,  being  thus  reduced  to  a  scheme  of 
co-operation  based  on  ideals  of  common  weal. 

The  common  welfare  ideals  which  control  association  and 

co-operation  are  premised  on  the  assumption  that  government 

shall  not  undertake  to  do  anything  that  may  be  carried  on  with 

greater  advantage  to  society  by  individuals  or  by  associations 

30 


450  Popular  Will  and  Efficiency  [§  369 

and  corporations  organized  for  private  ends.  That  is,  it  is 
assumed  that  a  large  part  of  the  wants  and  desires  of  individuals 
may  best  be  satisfied  under  a  regime  in  which  the  individual  is 
left  free  to  act  as  he  pleases,  so  long  as  this  action  does  not  oper- 
ate as  a  handicap  to  others.  Production,  therefore,  is  largely 
left  to  private  initiative.  Under  our  government  the  individual 
is  guaranteed  freedom  to  contract,  freedom  to  employ  and  be 
employed,  freedom  to  enjoy  the  returns  from  his  effort.  Under 
such  a  regime  the  broadly  organized  public  corporation  (the 
government)  does  not  undertake  to  carry  on  more  than  a  small 
part  of  the  productive  processes.  Nearly  all  extractive  enter- 
prises, manufacturing,  and  exchange  are  carried  on  by  privately 
organized  co-operation ;  and  so,  too,  nearly  all  things  produced, 
as  well  as  the  resources  of  nature,  are  privately  owned  and 
controlled.  On  the  other  hand  provisions  for  transportation, 
communication,  and  many  other  activities  common  in  character 
are  largely  provided  for  by  the  government  direct,  or  by  corpo- 
rations chartered  by  the  government  to  serve  the  people. 

We  have  organized  our  institutions  on  the  theory  that  the 
will  of  the  people  shall  determine  all  questions  of  policy  having 
to  do  with  the  adjustments,  the  new  alignments,  coincident 
with  progress.  Having  thus  provided  for  a  high  degree  of 
private  initiative,  the  development  of  productive  resources 
has  been  marvellous;  but  with  each  advance,  each  change  in 
social  or  institutional  relation,  new  demands  have  been  made 
on  the  government  as  the  only  agency  which  is  competent  to 
protect  the  individual.  Business  that  yesterday  was  thought 
best  to  be  left  to  private  initiative  has  become  today  a  social 
menace.  Due  to  the  strides  which  have  been  made,  organ- 
ized democracy  is  each  day  confronted  with  a  need  for  new 
adjustment.  Each  demand  for  new  and  arbitrary  adjustment 
between  private  initiative  and  public  control  must  be  so  made 
as  not  to  do  violence  to  concepts  of  social  justice;  each  change 
therefore  requires  the  most  careful  consideration.  Not  only 
is  a  broad  citizenship  called  upon  to  form  new  opinions  and 
express  itself  intelligently  with  respect  to   each   new  welfare 


§  37o]  Means  for  Efficiency  451 

demand,  but  the  necessarily  expanding  activities  of  govern- 
ment require  that  pubHc  affairs  be  managed  by  pubHc  servants 
with  efiSciency  and  economy. 

370.  Means  Already  Provided  for  Making  Government  Efficient 

The  demands  which  are  made  on  citizenship  as  well  as  on 
agents  of  government  (both  elector  and  officer)  are  fast  increas- 
ing. It  is  time  for  us  to  take  stock  of  the  instruments  which 
we  have  for  making  organized  democracy  efficient.  Efficiency 
in  government  as  well  as  in  private  undertakings  requires 
that  adequate  provision  shall  be  made  (i)  for  "planning  work 
to  be  done"  and  (2)  for  "the  execution  of  plans."  As  apphed 
to  government,  "planning  work  to  be  done"  should  take 
account  of  the  following  elements  of  the  problem: 

1.  The  welfare  needs  to  be  met. 

2.  Whether  these  needs  shall  be  met  by  public  or  private 
enterprise. 

3.  The  government  organization  to  be  provided. 

4.  The  character  of  personnel  required. 

5.  The  conditions  under  which  employees  must  work. 

6.  The  technique  or  methods  to  be  used. 

7.  The  funds  and  physical  means  (material  and  equipment) 
needed  to  enable  the  personnel  to  work  efficiently. 

8.  The  means  whereby  funds,  material,  and  equipment  may 
be  obtained. 

These  questions  are  institutional.  They  apply  to  constitution 
making  as  well  as  to  the  consideration  of  policies  preHminary 
to  the  enactment  of  statutes,  the  making  of  appropriations, 
and  the  authorization  of  loans.  The  execution  of  plans 
as  distinguished  from  the  making  of  them  comprehends: 

1.  Selecting  and  assigning  the  personnel. 

2.  Deciding  what  material  and  equipment,  and  what 
technical  methods  shall  be  employed  on  each  piece  of  work 
or  each  "job"  which  is  to  be  undertaken. 

3.  Giving  orders  in  such  form  and  with  such  instructions 
that  they  will  be  understood. 


452  Popular  Will  and  Efficiency  [§370 

4.  Inspecting  and  reviewing  each  result  as  a  means  of  deter- 
mining whether  orders  have  been  properly  executed. 

5.  Obtaining  information  essential  to  executive  direction  and 
control. 

6.  Reporting  on  the  methods  of  executing  and  on  results 
obtained. 

7.  The  submission  of  proposals  for  future  work  in  order  that 
he  who  executes,  and  to  this  end  is  required  to  plan  for  work, 
may  lay  before  those  responsible  for  determining  the  conditions 
under  which  work  is  done  the  results  of  experience  —  give  them 
the  benefit  of  his  judgment  in  the  form  of  recommendations 
looking  toward  the  better  adaptation  of  organization,  material, 
and  equipment  to  the  future  needs  of  the  service  —  lay  the 
foundation  in  estimates  for  the  granting  of  the  funds  and  author- 
ities required  to  carry  on  the  business  with  highest  success. 

Assuming  that  all  these  elements  are  necessary  to  efficient 
management;  assuming  that  all  go  to  make  up  the  standard 
by  which  the  government  as  an  instrument  of  welfare  is  to  be 
measured,  we  find  that  the  public  corporation  is  quite  as  well 
adapted  to  obtaining  the  best  possible  results  at  the  least  possible 
cost  as  is  the  private  corporation.  As  has  been  said  before,  the 
institutions  of  democracy  are  cast  on  practically  the  same  lines 
as  are  the  institutions  of  private  business,  the  difference  being 
in  the  beneficiaries.  The  modern  democratic  institution  finds 
its  prototype  in  the  modern  institution  developed  for  efficiency 
in  private  undertakings.  In  the  age-long  conffict  between 
autocracy  (or  organized  privilege)  and  democracy  (or  organized 
citizenship)  the  devices  which  were  evolved  by  citizens  for  the 
successful  transaction  of  their  private  business  were  availed  of 
for  the  purpose  of  prosecuting  public  business.  Practically  the 
same  organization  was  adopted,  the  citizen  taking  the  place  of 
the  stockholder;  practically  the  same  methods  were  employed 
for  locating  responsibility,  for  laying  the  foundation  for  efficient 
I  planning  and  the  efficient  execution  of  plans.  Democratic 
doctrine  having  originated  among  the  industrial  members  of  the 
community,  the   experience   which   they  had  gained  through 


§§37i>372]        Responsibility  Defined  453 

generations  of  co-operation  for  contributing  to  the  wealth  of 
shareholders  was  insinuated  into  their  charters  of  government 
for  common  wealth.  Finally,  in  this  country  at  least,  when  the 
last  vestige  of  legal  authority  of  persons  representing  organized 
privilege  was  cast  off  and,  in  the  reorganization  of  our  public 
institutions,  the  citizen  became  the  legally  controlling  factor, 
practically  every  institutional  relation  which  had  obtained  in 
the  private  corporation  was  estabhshed  in  government. 

371.   Constitutional  Provisions  for  Planning  and  Executing  Plans 

Let  us  hastily  review  the  constitutional  and  charter  provisions 
which  have  been  made  for  efficient  management  in  government. 
The  American  government  in  all  its  parts  is  a  highly  refined 
corporate  trusteeship,  in  which  the  citizen  is  both  sovereign  and 
beneficiary.  The  corporation  (the  government)  has  been 
chartered  by  the  sovereign  to  hold  public  funds  and  property  as 
a  trustee,  and  to  use  the  same  for  the  welfare  of  the  people.  In 
incorporating  this  governing  agency  every  precaution  has  been 
taken  to  make  both  the  electorate  (as  voting  trustees)  and  officers 
(as  corporate  employees)  responsive  to  the  sovereign  will  and 
responsible  to  citizenship  for  the  efficient  performance  of  the 
duties  which  devolve  upon  them.  The  electorate  (as  voting 
trustees)  are  held  responsible  for  expressing  popular  will  with 
respect  to  (i)  all  subjects  having  to  do  with  the  modffication 
of  the  deed  of  trust  —  the  amendments  of  constitutions;  (2) 
the  succession  of  governing  agencies  —  the  election  and  recall 
of  officers;  (3)  certain  other  fundamental  questions  which  are 
referred  to  the  citizens  by  the  official  class  or  otherwise  —  by 
use  of  the  initiative  and  the  referendum. 

372.   Responsibility  Clearly  Defined 

This  is  the  provision  which  democracy  has  made  for  impress- 
ing the  will  of  the  people  on  the  official  class  through  the 
electorate  with  respect  to  subjects  of  common  welfare.  For 
the  purpose  of  making  officers  as  the  employees  of  the  corpora- 
tion responsive  to  public  will  and  at  the -same  time  responsible 


454  Popular  Will  and  Efficiency  [§  372 

for  the  performance  of  the  duties  which  devolve  upon  them, 
the  powers  to  be  exercised  in  the  transaction  of  public  business 
have  been  divided  into  three  general  classes;  and  the  duties  of 
particular  officers  fall  within  one  or  the  other  of  these  classes. 
One  class  of  officers  is  required  to  sit  as  a  deliberative  body  for 
the  purpose  of  determining  questions  of  poUcy  or  "planning." 
A  second  class  of  officers  is  required  to  look  after  the  adminis- 
tration of  the  details  of  business  of  the  corporation  —  i.e.,  to 
manage  the  estate  according  to  the  purpose  and  for  the  ends 
set  forth  in  the  deed  of  trust  —  the  constitution;  this  second 
class  of  officers  is  responsible  for  the  "execution  of  plans." 
In  addition  to  these  a  third  class  of  officers  is  created  whose 
duty  it  is,  whenever  question  is  raised,  to  determine  whether 
officers  of  the  other  classes  are  acting  within  their  rights. 

More  concretely,  the  form  of  organization  of  our  public 
corporation  provides  that  the  legislature  as  a  representative 
deUberative  body  must  decide  what  work  is  to  be  done;  what 
personnel,  organization,  and  equipment  shall  be  provided; 
what  funds  shall  be  granted.  The  executive  branch  or  adminis- 
trative officers  or  agents  must  be  relied  on  to  execute  these 
plans,  subject,  however,  to  review  both  by  the  legislature  and 
by  the  courts. 

The  machinery  of  government  has  been  so  far  perfected  that 
it  might  go  on  forever  without  any  manifestation  on  the  part 
of  the  people  as  sovereign.  But  the  reason  why  predatory 
"organizations"  have  succeeded  in  subverting  the  ends  and 
purposes  of  the  government  is  quite  obvious.  Like  all  other 
enterprises  which  are  allowed  to  proceed  without  the  careful 
attention  of  the  proprietor  or  beneficiary,  it  runs  to  loose  ends 
and  fails  to  attain  the  purpose  for  which  it  was  established. 
The  problem  of  to-day  is  to  provide  the  means  whereby  the  acts 
of  governmental  agents  may  be  made  known  to  the  people  — 
to  supply  the  link  which  is  missing  between  the  government  and 
citizenship.  Technically  the  problem  is  to  supply  a  procedure 
which  will  enable  the  people  to  obtain  information  about  what 
is  being  planned  and  how  plans  are  being  executed  —  informa- 


§§  373, 374]      Budget  to  be  Undertaken  455 

tion  needed  to  make  the  sovereign  will  an  enlightened  expression 
on  subjects  of  welfare.  This  problem  is  not  one  of  organization 
so  much  as  it  is  a  problem  of  methods  for  securing  informa- 
tion. There  is  no  lack  of  law  fixing  responsibility;  there  is 
no  lack  of  intelligence  for  the  consideration  of  questions  con- 
cerning which  information  is  available.  Miscarriages  in  govern- 
ment, like  miscarriages  in  justice,  are  due  not  to  defects  in 
organization  or  to  defects  in  law,  but  to  lack  of  evidence.  Effi- 
ciency in  the  handling  of  highly  complex,  technical  questions 
requires  that  conclusions  shall  be  based  on  accurate  information. 
Management  to  be  made  efficient  must  become  the  subject  of 
consideration  based  on  exact  scientffic  data.  Complete  and 
accurate  information  as  a  basis  for  management  requires  the 
use  in  government  of  instruments  of  precision.  Concrete  and 
accurate  information  about  results  requires  that  the  recorded 
facts  shall  reach  the  people.  The  instruments  of  precision 
which  have  been  invented  for  use  and  are  used  to  advantage 
in  private  management  have  been  almost  wholly  wanting  in 
public  management. 

373.  Means  Still  to  be  Provided 

Among  the  instruments  of  precision  which  must  be  installed 
and  in  the  precise  use  of  which  government  agents  must  be 
trained  are  the  following: 

1.  A  budget. 

2.  A  balance  sheet. 

3.  An  operation  account. 

4.  A  detail  individual  efficiency  record  and  report. 

5.  A  system  of  cost  accounts. 

6.  A  means  for  obtaining  a  detail  statement  of  costs. 

374.   The  Budget 

A  budget  is  the  best  known  and  most  highly  developed  instru- 
ment of  precision,  by  means  of  which  the  proposals  for  future 
welfare  work  may  be  laid  before  the  legislative  or  deliberative 
branch  of  the  government  and  before  the  people  for  considera- 


456  Popular  Will  and  Efficiency  [§  374 

tion.  A  budget  is  to  self-government  what  the  proposals  con- 
tained in  the  annual  report  of  the  president  of  a  corporation 
are  to  the  board  and  stockholders.  The  need  for  an  exact 
statement  of  these  proposals  is  to  be  found  in  the  fact  that 
the  executive  is  the  one  responsible  for  carrying  out  the 
details  of  administration.  In  executing  policies  and  admin- 
istering on  the  details  of  the  business  in  hand,  administrative 
officers  are  the  only  ones  who  fully  understand  the  technical 
requirements  of  the  service;  they  are  the  ones  who  are  meet- 
ing the  needs  of  the  public;  they  are  the  ones  who  know 
what  are  the  conditions  to  be  met  in  order  to  perform 
public  service  with  economy  and  eflSciency.  The  ofl&cers 
who  are  in  immediate  charge  of  these  details  are  the  ones 
who  must  be  looked  to  to  describe  the  needs  of  each  branch 
of  the  administration  as  they  see  it.  They  cannot,  however, 
consider  the  needs  of  the  service  as  a  whole;  they  cannot 
represent  the  executive  branch  of  the  corporation.  This  must 
necessarily  fall  on  the  chief  executive.  The  chief  executive 
is  the  only  officer  who  can  represent  the  government  as  a 
whole;  he  is  the  one  who  should  be  held  responsible  for  sub- 
mitting proposals  based  on  a  consideration  of  the  proposals 
of  his  subordinates. 

A  concrete  illustration  of  what  is  meant  by  a  budget  is  found 
in  the  report  of  the  Commission  on  Economy  and  Efficiency 
made  to  Congress  by  President  Taft  in  191 2.^  Briefly  stated,  the 
recommendations  of  the  Commission,  which  were  approved  by 
the  President,  are: 

(i)  That  the  President,  as  the  constitutional  head  of  the 
executive  branch  of  the  government,  shall  each  year  submit 
to  Congress,  not  later  than  the  first  Monday  after  the  beginning 
of  each  regular  session,  a  budget. 

(2)   That  the  budget  so  submitted  shall  contain: 

*  Report  of  the  Commission  on  Economy  and  EfSciency  on  "The  Need 
for  a  National  Budget,"  House  Doc,  No.  854,  62  Congress,  2  session  (1912). 
See  also,  Budget  submitted,  Feb.  26,  1913;  Senate  Doc,  No.  1113  62 
Congress,  3  session. 


§  374]  Budget  to  be  Undertaken'  457 

(a)  A  budgetary  message,  setting  forth  in  brief  the  significance 
of  the  proposals  to  which  attention  is  invited. 

(6)  A  financial  statement,  setting  forth  in  very  summary 
form:  (i)  financial  condition;  (2)  the  condition  of  funds  as 
well  as  of  appropriations  and  other  authorizations  for  incurring 
liabilities  and  spending  money;  (3)  an  account  of  revenues 
and  expenditures  for  the  last  completed  fiscal  year;  and  (4) 
the  effect  of  past  financial  policy  as  well  as  of  budget  proposals 
on  the  general-fund  surplus. 

(c)  A  summary  of  expenditures,  classified  by  objects,  set- 
ting forth  the  contracting  and  purchasing  relations  of  the 
government. 

{d)  Summaries  of  estimates,  setting  forth:  (i)  the  estimated 
revenues  compared  with  actual  revenues  for  a  period  of  years; 
(2)  estimated  expenditures  compared  with  actual  expenditures 
for  a  period  of  years. 

{e)  A  summary  of  proposed  changes,  showing  what  legisla- 
tion it  is  thought  should  be  enacted  in  order  to  enable  the 
administration  to  transact  public  business  with  greater  econ- 
omy and  efficiency;  i.e.,  changes  in  organic  law  which,  if 
enacted,  would  affect  appropriations  as  well  as  the  character 
of  work  to  be  done. 

Discussing  the  advantages  which  would  accrue  from  such  a 
budget,  it  was  pointed  out  by  the  Commission  that  through 
having  the  many  details  contained  in  the  estimates  reduced  to 
such  summary  form,  the  significance  of  the  proposals  of  the 
administration  for  next  year's  work  could  be  at  once  grasped  by 
members  of  Congress  as  well  as  by  the  public.  The  President 
could  regularly  call  attention  to  new  questions  of  policy  by  a 
special  message  at  the  time  Congress  first  convened;  by 
making  available  the  data  necessary  to  the  consideration  of 
financial  policy  in  relation  to  the  expenditures  to  be  financed; 
by  pointing  out  wherein  there  is  lack  of  economy  and  the  con- 
ditions which  are  adverse  to  efficient  management;  by  laying 
before  Congress  and  the  country  a  summary  of  the  legislation 
which  is  thought  desirable  in  order  to  enable  the  administration 


45^  Popular  Will  and  Efficiency  [§374 

to  transact  the  business  of  the  government  with  increased 
economy  and  efficiency,  as  well  as  better  to  adapt  the  work  of 
the  government  to  the  needs  of  the  country.  The  budget  would 
provide  the  means  whereby  those  who  are  responsible  for  execut- 
ing plans  may  avail  themselves  of  the  services  of  expert  agents 
of  government  for  preparing  those  plans  to  be  then  submitted 
to  the  legislative  branch.  This  would  not  only  locate  respon- 
sibihty  for  plans  submitted,  but  would  locate  responsibility  in 
the  legislative  branch  either  for  accepting  or  rejecting  these 
plans. 

If  the  legislature  accept  the  plans,  they  are  responsible 
for  acceptance.  If  they  reject  the  plans  which  have  been  pre- 
pared and  submitted  by  the  executive,  then  the  executive  has 
a  right  to  veto  the  action  of  the  legislature  which  comes  to 
him  in  the  form  of  an  appropriation  bill.  In  case  the  veto  is 
overruled,  then  the  chief  executive  has  the  right  to  refuse  to 
execute  the  mandate  and  go  back  to  the  people  on  the  issue. 
By  means  of  a  budget  the  government  and  its  work  may  thus 
be  made  a  part  of  the  thought  and  action  of  the  people ;  since 
through  the  budget  the  representatives  of  the  people  in  the 
legislature  would  be  able  to  go  at  once  to  the  consideration  of 
the  questions  of  pohcy  which  are  to  be  decided,  so  far  as  this 
may  be  outhned  by  the  best  expert  opinion  that  the  head  of  the 
administration  can  command.  A  budget,  therefore,  is  the  method 
intended  to  supersede  the  consideration  of  the  work  of  the 
government  and  its  policies  in  secret  council  by  committees  of 
the  legislature,  thereby  keeping  both  individual  members  of 
the  legislature  and  the  country  at  large  in  the  dark  as  to  what 
will  be  formally  proposed  until  the  details  of  appropriation  are 
submitted  at  or  near  the  end  of  a  legislative  session.  Now 
measures  carrying  millions  of  dollars  in  the  national  government 
are  passed  without  anyone  except  the  committee  on  appropria- 
tions knowing  what  is  the  significance  of  measures  proposed. 
A  budget  submitted  by  a  responsible  head  of  the  administration 
is  therefore  a  necessary  first  step  to  the  intelligent  manage- 
ment of  pubUc  affairs. 


\\      §37S]  Balance  Sheet  459 


h 


375.  The  Balance  Sheet 

The  budget  has  been  described  as  an  instrument  of  precision 
for  use  in  legislative  planning  —  a  prospectus  of  projects  to  be 
financed.  This  instrument  has  been  worked  out  as  a  means 
of  locating  legislative  as  well  as  executive  responsibility  with 
respect  to  measures  proposed  or  enacted  for  the  future.  All 
the  instruments  of  precision  which  have  been  mentioned  have 
been  developed  in  their  best  form  in  private  corporate  manage- 
ment; these  are  gradually  being  applied  to  public  undertakings 
as  a  means  of  currently  producing  statements  of  fact  for 
the  information  of  those  who  are  charged  with  "executing 
plans." 

The  balance  sheet  is  an  instrument  to  be  currently  used  by 
the  executive,  who,  though  accountable  for  every  act  of  his 
subordinates,  as  for  a  trust,  is  far  removed  from  the  varied 
activities  and  details  which  make  up  the  business  which  he 
dominates;  it  is  an  instrument  by  means  of  which  the  manager 
responsible  for  the  execution  of  plans  and  policies  may  have 
his  attention  directed  to  subjects  of  immediate  administrative 
concern.  As  an  instrument  of  precision  it  is  quite  as  available 
and  quite  as  useful  to  a  state  or  municipal  ofiicer  as  to  the  head 
of  a  private  corporation.  To  the  manager  it  serves  the  same 
purpose  as  the  contour  map  and  chart  of  movements  to  the 
military  leader;  by  this  means  the  officer  is  able  to  v/atch  in 
perspective  the  varied  activities  around  him,  to  give  direction 
and  to  relate  this  perspective  to  the  conditions  surrounding 
and  the  results  following  each  movement.  In  short,  the 
purpose  of  the  balance  sheet  is  to  serve  the  manager  as  an  in- 
strument for  determining  at  all  times  both  present  condition 
and  net  result ;  to  give  to  him  a  sense  of  proportion  and  relation 
that  he  can  get  in  no  other  way. 

Primarily  the  purpose  of  the  balance  sheet  is  to  reflect  a 
summary  of  what  the  government  owns  and  what  the  govern- 
ment owes.  As  an  administrative  instrument  one  of  its  purposes 
is  to  show  present  financial  conditions;   thus  the  balance  sheet 


460  Popular  Will  and  Efficiency  [§  376 

is  adapted  to  giving  not  only  the  relations  of  resources  to  liabil- 
ities and  of  surplus  to  deficit,  but  also  to  reflecting  the  present 
condition  of  appropriations  and  other  authorizations  to  incur 
liabilities  and  to  expend.  By  the  use  of  a  balance  sheet  the 
ofl&cer  may  have  prompt,  complete,  and  accurate  information 
needed  for  thinking  about  every  financial  relation  within  his 
control. 

Notwithstanding  the  general  use  of  the  balance  sheet  by 
ofiicers  of  private  corporations,  notwithstanding  the  fact  that 
the  facts  reflected  through  a  balance  sheet  are  quite  as  important 
for  the  consideration  of  the  problem  of  a  pubHc  ofl&cer  as  they 
are  to  oflScers  of  private  corporations,  it  is  seldom  employed 
by  officers  of  state,  municipal,  or  national  government.  In  not 
being  provided  with  such  an  instrument  these  officers  are 
seriously  handicapped  by  lack  of  means  for  obtaining  promptly 
the  information  which  is  needed  to  enable  them  to  think  about 
the  problems  that  relate  to  the  administration  of  property, 
to  the  fidelity  of  custodians  and  to  financing.  Not  having  a  bal- 
ance sheet,  not  only  is  the  officer  of  municipal,  state,  or  federal 
government  less  efficient,  but  the  people  are  without  the  means 
for  making  available  the  data  needed  for  the  consideration  of 
matters  of  serious  importance  pertaining  to  the  affairs  of  the 
corporation;  and  legislators  are  without  the  means  for  obtain- 
ing well-classified  information  necessary  to  the  consideration  of 
present  business  or  future  plans. 

376.   The  Operation  Accoimt 

Another  important  instrument  of  precision  which  has  been 
developed  in  private  enterprises  and  which  is  available  to 
managers  of  public  institutions,  but  which  has  not  been  to  any 
considerable  extent  availed  of,  is  the  operation  account.  This 
is  a  form  of  instrument  which  shows  on  the  one  side  the  cost 
incurred  in  conducting  each  branch  of  the  business,  and  on  the 
other  side  the  revenue  provided  for  meeting  these  costs.  The 
operation  account  was  devised  by  private  managers  because 
of  the  inaccuracy  and  incompleteness  of  statements  which  were 


§3771  Efficiency  Records  461 

prepared  from  an  analysis  of  cash  receipts  and  cash  dis- 
bursements. Costs  may  be  incurred  which  have  not  yet 
been  paid;  income  may  be  accrued  which  has  not  yet  been 
collected;  payments  may  be  made  in  advance;  revenues 
may  be  prepaid;  and  in  the  cash  there  may  be  receipts  and 
payments  which  may  not  have  had  anything  to  do  with 
revenues  and  expenses. 

The  inaccuracies  and  incompleteness  of  the  data  pertaining 
to  the  relation  of  cost  to  income,  when  taken  from  accounts 
showing  transactions  in  cash,  are  even  more  striking  in  public 
institutions  than  in  private;  taxes  may  not  be  collected  for  many 
years;  the  expenses  may  be  largely  paid  out  of  borrowings. 
Revenues  accrued  are  usually  collectable,  but  if  not  collected, 
accounts  and  reports  which  are  based  on  receipts  may  lead 
officers  and  persons  far  afield  who  try  to  think  about  problems 
of  government.  That  is,  this  inaccuracy  in  statements  of  opera- 
tions may  be  the  cause  of  reaching  unsound  and  dangerous 
conclusions.  Notwithstanding  this  fact,  but  few  state  or 
municipal  managers  have  provided  themselves  with  such  an 
instrument  of  precision  as  a  means  of  telling  this  story.  The 
government  managers  are  supposed  to  think,  act,  and  direct 
the  affairs  of  state  with  judgment,  without  any  exact  knowledge 
as  to  the  relation  between  cost  of  operation  and  the  income 
provided  for  meeting  it. 

377.  EflSciency  Records  and  Reports 
Much  has  been  said  of  late  about  the  need  for  increased 
economy  and  efficiency  in  the  management  of  public  affairs. 
Generally  speaking,  the  officer  is  charged  with  every  action  that 
results  in  waste,  whether  this  be  in  connection  with  pur- 
chases or  in  connection  with  work  performed.  Few  have 
asked  themselves  the  question  whether  the  officer  is  adequately 
equipped  with  instruments  of  precision  for  determining  or 
having  brought  regularly  to  his  attention  evidences  of  waste 
and  inefficiency. 

Generally  speaking,  a  person  who  enjoys  the  confidence  and 


462  Popular  Will  and  Efficiency  [§378 

respect  of  his  fellows,  who  has  attained  marked  success  in  the 
management  of  public  affairs,  when  elected  to  office  finds  him- 
self without  the  means  of  knowing  what  is  being  bought;  what 
price  is  being  paid;  whether  things  purchased  and  paid  for 
are  actually  delivered;  whether  the  things  delivered  are  used 
and  properly  accoimted  for;  whether  employees  are  efficient 
or  inefficient,  faithful  or  faithless.  Not  only  is  the  officer 
himself  handicapped,  but  in  Hke  manner  the  public.  Various 
forms  of  efficiency  records  have  been  devised.  The  purpose  of 
this  is  to  determine  whether  or  not  the  individual  employee  is 
capable  or  incapable;  whether  he  has  performed  his  services 
efficiently  or  inefficiently. 

378.  Cost  Accounts  as  Related  to  the  F*roblem  of  Efficiency 

Another  class  of  information  which  is  needed  as  a  means  for 
determining  the  character  of  results  obtained  is  what  is  called 
cost  data.  The  cost  data,  as  distinguished  from  indixadual 
efficiency  records,  relate  to  the  product  and  not  the  workmen. 
The  difference  may  be  illustrated  with  reference  to  a  baseball 
score.  In  the  report  of  almost  any  baseball  game  will  be  foimd 
two  classes  of  data;  one  will  show  the  score  or  the  result  of  the 
work  of  the  individual,  the  other  will  show  the  score  of  the 
team  as  a  whole.  The  individual  record  forms  the  basis  for 
considering  the  work  of  each  man  on  the  team  and  by  means 
of  the  data  thus  tabulated  the  efficiency  of  one  player  may  be 
compared  with  that  of  another.  The  team  score,  however, 
enables  those  who  are  interested  in  baseball  to  compare  the 
results  of  one  team  as  against  another. 

In  this  relation  a  peculiar  fact  is  to  be  noted:  that  for  every 
game  we  have  worked  out  a  definite  score  card  or  basis  for  the 
consideration  of  the  efficiency  of  indi\idual  players.  For  all 
games  where  team  work  is  required  there  is  also  worked  out  a 
definite  basis  for  making  a  score,  by  which  means  are  recorded 
the  facts  needed  to  consider  the  relative  merits  of  teams. 
In  fact  it  would  be  impossible  to  have  a  game  until  such  a 
basis  for  judgment  had  been  established.    The  interest  which 


§378]  Cost  Accounts  463 

we  have  in  games  is  due  to  our  ability  to  judge  of  the  excel- 
lence of  one  player  or  another  or  of  the  abiUty  of  one  team 
or  another  to  make  a  score.  By  reason  of  the  fact  that  uni- 
form standards  for  judgment  have  been  established,  it  is  a 
common  occurrence  not  only  to  find  men,  women,  and  children 
assembled  where  a  game  is  in  progress,  but  they  may  be  found 
before  bulletin  boards  watching  the  score  of  individual  players 
and  of  teams  which  may  be  in  action  miles  distant.  Thus  the 
public  is  able  to  understand  and  appreciate  the  significance 
of  each  figure.  Similarly,  when  the  activities  of  our  great 
welfare  corporations,  those  which  have  to  do  with  the  life, 
health,  and  well-being  of  every  man,  woman,  and  child  of  a 
community,  may  be  reduced  to  such  a  scheme  of  information 
and  publicity  that  the  public  may  watch  the  score  card  and  ap- 
preciate the  significance  of  each  record,  we  may  look  forward 
to  the  time  when  not  only  the  government  as  an  institution 
will  be  conducted  with  highest  efficiency,  but  each  individual 
who  is  employed  by  the  government  will  have  the  same  pride 
in  his  individual  score  and  the  score  of  his  team  or  branch  of 
the  service  which  at  present  obtains  in  the  competition  of 
games. 

What  citizens  should  look  forward  to  is  provision  of  means 
whereby  each  person  engaged  in  public  service  will  be  able 
to  establish  for  himself  a  reputation.  Furthermore,  it  is  to 
be  noted  that  the  same  means  which  will  enable  the  officer 
and  the  individual  employee  to  establish  a  reputation  will  be 
the  means  whereby  popular  sovereignty  may  be  made  effective. 
It  is  only  by  having  definite,  concrete,  up-to-date  information 
about  each  public  undertaking  that  a  basis  may  be  laid  for 
judgment  with  respect  to  the  efficiency  of  one  organization  or 
method  as  opposed  to  another  organization.  The  first  thing 
to  be  provided  as  a  basis  for  all  of  the  considerations  which  bear 
on  questions  of  public  activity  is  an  adequate  means  for  giving 
publicity  both  to  the  acts  of  individual  employees  and  to  the 
character  of  results  which  are  obtained  through  the  organiza- 
tions.   Without  this  all  the  laws  which  may  be  passed,  whether 


464  Popular  Will  and  Efficiency  [§  379 

for  initiative,  referendum,  recall,  short  ballot,  primaries,  uni- 
versal suffrage,  or  what  not,  must  prove  disappointing.  Where 
the  people  have  been  informed,  they  have  thought  right  and 
acted  right;  when  the  people  have  been  informed,  no  oflficer 
could  afford  to  assimie  responsibility  either  for  infideUty  or 
incompetence  in  the  management  of  our  public  trusts.  With 
complete,  accurate,  and  prompt  information  provided,  no  safe- 
guards to  fidelity  and  competence  are  necessary  other  than 
such  as  may  be  found  in  the  common  law.  The  question  as 
to  what  machinery  will  be  employed  will  resolve  itself  into  a 
consideration  of  adaptation  to  the  welfare  work  to  be  done. 

379.    "  Let  there  be  Light " 

"The  concern  of  patriotic  men  is  to  put  our  government 
again  on  its  right  basis  by  substituting  the  popular  will  for 
the  rule  of  guardians,  the  processes  of  common  counsel  for 
those  of  private  arrangement.  In  order  to  do  this,  a  first 
necessity  is  to  open  the  doors  and  let  in  the  hght  on  all  affairs 
which  the  people  have  a  right  to  know  about.  .  .  .  There 
are  those,  of  course,  who  are  wedded  to  the  old  ways  and  who 
will  stand  out  for  them  to  the  last,  but  they  will  sink  into  a 
minority  and  be  overcome.  .  .  .  The  better  way  is  to  take 
the  public  into  their  confidence.  .  .  .  Wherever  any  public 
business  is  transacted,  wherever  plans  affecting  the  pubUc  are 
laid,  or  enterprises  touchmg  the  public  welfare,  comfort  or 
convenience  go  forward,  wherever  political  programs  are  for- 
mulated or  candidates  agreed  on — over  that  place  a  voice 
must  speak,  with  the  divine  prerogative  of  a  people's  will,  the 
words:   'Let  there  be  Light.'"  ^ 

But  there  is  further  reason  for  providing  the  means  whereby 
those  who  undertake  to  serve  the  people  may  have  full  knowl- 
edge. Without  this  ofl&cers  are  being  constantly  misled. 
The  people,  therefore,  owe  it  as  a  first  duty  to  themselves, 
and  as  an  equal  duty  to  those  who  undertake  to  serve  them, 
1  The  World's  Work,  May,  1913,  p.  59  et  seq. 


§379]  Popular  Will  and  Efficiency  465 

to  insist  on  the  technical  equipment  required  to  produce  the 
light  needed  to  make  each  citizen,  each  elector,  each  oflficer 
and  each  act  stand  forth  to  be  judged  by  that  greatest  and 
most  just  of  all  tribunals — an  enlightened  people;  to  have 
the  facts  brought  to  the  test  of  the  best  of  all  laws — an 
informed  pubUc  conscience. 


Index 


Index 


ABSOLUTISM,  based  upon  predation, 
8,  9,  ii;  self -limitation  of,  lo, 
II,  17;  and  industry,  11;  in  Asia  and 
Japan,  12;  disappearance  of,  13,  14; 
fictions  of,  16;  in  England,  17,  58; 
not  suited  to  America,  59 

Adams,  Samuel,  and  Committees  of 
Correspondence,  194 

Administrative  Agents,  as  trustees  of 
people,  63;  access  to  records  of,  404; 
reports  of,  405;  investigation  of,  406; 
impeachment  of,  406;  removal  of, 
407-409;  judicial  control  of,  409, 
410;  inhibitions  on,  410;  cannot  sus- 
pend laws,  411.     See  OiEcers 

Agrippa,  ComeUus,  on  superiority  of 
women,  163 

Alabama,  provision  for  Amendments, 
287;    inhibitions  on  legislators,  393 

Allen,  W.  H.,  and  access  to  records,  108 

Amendments,  power  to  make,  66;  by 
legislature,  67;  by  assemblies,  68; 
methods  of  making,  276,  284;  to 
first  constitutions,  279;  by  Council 
of  Censors,  280;  in  Massachusetts, 
282;  Kentucky  method,  283;  diffi- 
culty of  making,  283;  proposal  and 
ratification  of,  284-288;  by  legisla- 
tures classified,  285;  by  initiative  and 
referendum,  335;  small  vote  on,  340. 
See  Constitutions 

Anti-Masonic  Convention,  213 

Apostacy,  punishments  for,  in  England, 
82,83 

Appropriations,  restrained  by  injunc- 
tion, 116 

Argall,  Samuel,  Administration  of,  28 

Arizona,  recall  of  judicial  oflicers  in,  382 

Arrest,  citizen  aid  in,  124;  by  citizens 
limited,  125 

Arthur,  Chester  A.,  civil  service  under, 
417 

Asia,  absolutism  in,  12;  a  field  of  con- 
quest, 12 


Assemblies,  of  electors,  180;  in  local 
units,  296,  297.  See  Representative 
AssembUes 

Assembly,  peaceable,  94,  95,  96;  not 
limited  to  voters,  95;  aids  social  co- 
ordination, 95 ;  right  of,  95,  96 

RACON'S  REBELLION,  and  suffrage, 
138 

Balance  Sheet,  and  executive  control, 
459;  and  efficiency,  460,  461 

Baltimore,  Lord,  grant  of  1632,  47 

Ballots,  secrecy  in,  178;  purity  of,  221; 
primary,  230,  237;  printed  by  parties, 
263;  Australian,  263;  and  party 
columns,  263-265;  and  spUt  tickets, 
264;  unwieldy,  265;  short  ballot 
movement,  271,  defects  of,  272; 
overburdened,  357 

Bearing  Arms,  in  England,  91;  under 
feudaUsm,  92;  guaranteed  in  Bill  of 
Rights,  92,  93;  in  state  constitutions, 
93 ;  and  the  Boer  War,  93 

Beneficiaries,  private,  104 

Berkeley  and  Carteret,  grants  of,  49,  50 

Berkeley,  Sir  WilUam,  and  Virginia 
towns,  185 

Bill  of  Rights,  in  first  state  constitu- 
tions, 88;  in  Federal  Constitution, 
88,  390;  natural  equality  in,  388; 
social  equality  in,  389,;  religious  free- 
dom in,  389;  freedom  of  speech, 
press  and  assembly  in,  389,  390 

Bishop,  C.  F.,  on  suffrage  qualifications, 
i33y  135,  138;  on  rights  of  women  in 
Colonies,  164 

Blackstone,  Wm.,  on  apostacy,  82,  83; 
on  heresy,  83;  on  non-conformity, 
84;  on  treason,  85;  on  grand  juries, 
119 

Borgeaud,  C,  on  constitutional  con- 
ventions, 70,  71 

"  Boss,"  poUtical,  services  of,  443,  444 

Boston,  abandons  town  meetings,  186 


470 


Index 


I 


Bouvier,  J.,  on  elections,  356 

Brackett,  E.  T.,  on  referendum  for  suf- 
frage, 162 

Breda,  Treaty  of  1667,  40 

Bribery,  of  voters,  176;  of  legislators, 
373>  374;  of  judges,  429 

Budget,  and  efSciency,  455;  and  re- 
sponsibility, 457;  an  aid  to  Congress, 
457 

Bureau  of  Municipal  Research,  of  New 
York  City,  108,  109;  furnishes  in- 
formation, no;  of  Philadelphia,  no; 
and  access  to  records,  no,  in;  ex- 
tended toother  cities,  in;  and  intel- 
ligent citizenship,  127;  co-operates 
with  oflBcers,  127 

Business,  selfish  motive  in,  159;  and 
government,  159 

Bryce,  James,  on  town  meetings,  189; 
on  party  platforms,  198 

QABOT,  JOHN,  explorations  of,  23 
California,  primary  laws  of,  235; 
political  contributions  in,  255;  lobby- 
ing a  felony  in,  372 

Campaign,  educational,  445;  of  re- 
search, 445,  446 

Campaign  Arguments,  printed  by  state, 
261 

Campaign  Expenditures,  enumerated, 
251,  253;  unlawful,  254;  maximum, 
254;  in  Oregon  and  California,  254, 
255;  in  Maryland,  255;  iiUng  of,  255, 
penalties  for  unlawful,  256 

Campaign  Funds,  supplied  by  state, 
257;  in  primaries,  259;  in  elections, 
260;  paid  to  the  state,  260 

Campaign  Literature,  in  elections,  200 

Campaigns,  of  candidates,  193;  com- 
pared with  military  practices,  242, 
243;  danger  of  unrestricted,  242; 
ethical  standards  in,  244;  tempta- 
tions of,  244;  and  indifference  of 
citizens,  245;  corrupt  practices  in, 
246;  use  of  funds  in,  247 

Candidates,  formulate  issues,  193; 
methods  of  nominating,  201;  self- 
nomination  of,  202;  nominated  by 
caucuses,  204,  by  mass  meetings, 
205,  by  conventions,  210;  and  pri- 
mary ballots,  237;  and  military 
leaders  compared,  242;  and  electoral 
issues,  246,  247;  and  vested  interests, 
248;    and  corporation  contributions. 


249;  contributions  of,  251;   funds  of, 
257;  expenses  of,  paid  by  state,  258; 
arguments  for,   259,    distributed  by 
state,   260;    and  secret  ballot,    264. 
See  Nominations 
Canvassing  Boards,  composition  of,  268 
Cape  Ann,  settlement  of,  29 
Capital,  an  object  of  cupidity,  8 
Carolinas,   grant  of,   52,   53;    Locke's 
Constitution  in,  53,  54;    slavery  in, 
54;  failure  of,  54;  a  royal  province,  55 
Caucus,  legislative,  197,  204,  211;  con- 
gressional,   197,    204,   213;    composi- 
tion of,  204;    opposition  to,  205;   in 
New  Hampshire,  212 
Chamberlain,    G.   E.,   elected   senator, 

368 
Charter,  of  Virginia,  21,  25;  of  Gilbert 
and   Raleigh,   24;  to  Massachusetts 
Bay,  29,  30;  of  Oglethorpe,  31;  Fun- 
damental Orders  of  Connecticut,  38; 
of  Rhode  Island,  41;  of  Lord  Balti- 
more, 47;  of  Duke  of  York,  48;  of 
Berkeley  and    Carteret,    49,    50;    of 
Wm.  Penn,  51;  of  the  Carolinas,  52, 
53 
Chartered  Company,  in  Virginia,  25 
Charters,  colonial,  based  on  feudalism, 

24 

China,  recent  changes  in,  13 

Church,  protects  established  order,  82 

Cincinnati,  Bureau  of  Research,  128 

Cities,  free,  18;  governed  by  commis- 
sions, 400;   and  democracy,  442 

Citizen  Activities,  in  American  com- 
munities, 103;  must  be  organized,  112 

Citizen  Agencies,  in  America,  103; 
precede  government  activity,  103; 
furnish  information,  126,  127;  and 
officers,  126,  128,  129;  Bureaus  of 
Municipal  Research,  127,  128 

Citizen  Co-operation,  and  Wisconsin 
Industrial  Commission,  123;  with 
officers,  125,  126 

Citizen  Rights,  not  limited  to  voters, 
97;  and  effective  organization,  109; 
to  instruct  officers,  in;  in  Federal 
Constitution,  152;  in  state  constitu- 
tions, 152;  inalienable,  387;  natural, 
388;  social,  389;  religious,  389;  to 
speech  and  press,  389,  390;  to  bear 
arms,  390 

Citizens,  as  sovereigns,  81;  and  military 
force,   81;    guarantees  of,   81;  right 


Index 


471 


to  bear  arms,  94;  rights  of,  not  limited 
to  voters,  97,  nor  sex,  97;  duties  of, 
98,  99,  113,  114,  120,  121;  determine 
welfare  needs,  99,  102;  hampered  by 
ignorance,  107;  and  private  rights, 
114;  and  civil  cases,  115;  and  oflBcers, 
116;  and  grand  juries,  119;  and 
access  to  records,  120;  indifference 
of,  245;  and  judicial  rights,  436;  and 
aims  of  government,  448 

Citizenship,  basis  of  sovereignty,  63; 
sovereignty  of,  66;  and  the  electorate, 
106;  and  Fourteenth  Amendment, 
152;  as  a  suffrage  quaUfication,  170; 
and  the  "Boss,"  443;  and  reform 
movements,  445;  responsibiUty  of,  446 

City  Councils,  election  of,  369;  under 
closed  corporations,  399 

Civil  Service,  growth  of,  416;  reform 
associations,  416;  Act  of  1883,  417; 
under  Cleveland  and  McKinley,  417; 
under  Roosevelt  and  Taft,  417,  418; 
and  pohtical  contributions,  418,  421; 
and  pohtical  activity,  419;  classified 
and  unclassified,  421;  partisan  activ- 
ity under,  421;  in  states,  422,  423; 
employees  in  conventions,  423;  in 
Massachusetts,  424;  in  cities,  424, 
425;  optional,  425 

Civil  Suits,  private  character  of,  114; 
and  counselors  for  the  people,  114, 
IIS 

Clarendon  Code,  and  suffrage,  134 

Cleveland,  G.,  and  civil  service  em- 
ployees, 419 

Chnton,  DeWitt,  on  registration  of 
voters,  222 

Colonies,  and  English  policy,  59; 
epitomize  modem  state,  59;  as  fiefs 
of  crown,  59;  as  voluntary  associa- 
tions, 60;  exercise  right  of  petition, 
90,  91.     See  Charter 

Colonization,  predatory  character  of, 
24i  56,  58;  theory  of  ownership  in, 
57;  industrial  character  of,  59 

Colorado,  woman  suffrage  in,  156,  160; 
and  campaign  contributions,  257; 
bribery  of  legislators  in,  374 

Commercialism,  and  Opium  War,  58 

Commissioner  of  Accounts,  of  New 
York  City,  no 

Commission  Government,  initiative  and 
referendum  under,  354,  355;  in 
cities,  400 


Commission  on  Efficiency  and  Economy, 

on  the  Budget,  456 
Committees  of  Correspondence,  activi- 
ties   of,     during     Revolution,     100; 

formulate    issues,    194;     local,    194; 

value    of,    195;     intercolonial,    195; 

form   provisional  governments,    196; 

of  Democratic  Societies,  196 
Common   Law,   and   arrest,    124;    and 

judicial  decisions,  431 
Community  of  Interest,  economic,  21; 

and  imperiaUsm,  22 
Compulsory   Voting,    in   Belgium   and 

Spain,  177;  and  bribery,  177 
Conflict,  between  industry  and  spoha- 

tion,  9;    between  King  and  Barons, 

16 
Congress,    protection   of    members   in, 

371 

Congressional  Action,  in  RepubUcs,  loi 

Connecticut,  early  settlements  in,  37; 
need  of  protection  in,  37,  38;  Funda- 
mental Orders  of,  38;  town  govern- 
ment in,  39;  union  with  New  Haven, 
39;    Corrupt  Practice  Act  of,  250 

Conquests,  among  early  tribes,  7; 
among  industrial  groups,  7 

Constitutional  Conventions,  power  of 
delegates  in,  69;  powers  of,  70,  71; 
how  called,  282 

Constitutions,  power  to  amend,  66,  67; 
framed  by  legislatures,  67,  by  popular 
assemblies,  68;  protect  private  rights, 
86;  define  treason  and  libel,  87;  and 
bill  of  rights,  88;  protect  free  speech 
and  press,  88,  89,  90,  right  of  petition, 
90;  and  citizen  rights,  152,  153; 
methods  of  amending,  276-287; 
written  and  unwritten,  293-296,  313, 
317;  and  division  of  powers,  294; 
federal  and  state,  294;  and  the 
referendum,  310,  343;  and  local 
legislation,  312.     See  Amendments 

Conventions  (party),  oppose  self- 
nomination,  202;  example  of,  207; 
congressional,  209;  state,  209; 
opposed  by  Federalists,  210;  in 
Delaware,  2n;  adopted  in  New 
Hampshire,  212;  representation  in, 
212,  214,  215;  first  national,  213; 
rules  of,  214,  215,  217;  election  of 
delegates  to,  229;  regulated  by  law, 
234;  abolished,  235;  abuse  of,  235; 
and  civil  service  rules,  423 


472 


Index 


Convicts,  transported  to  America,  136 
Cooley,  T.  M.,  on  libel  against  govern- 
ment, 86;  on  written  constitutions, 
203;  on  referendum,  316,  317 
Co-operation,  in  society,  4;  popular,  5 
Corbin,  Francis,  candidacy  of,  198 
Corporations,    as   self-governing   units, 
19;  and  campaign  contributions,  249, 
252,    258;     reponsible    for    acts    of 
agents,  252 
Corrupt  Practice  Acts,  in  England  and 

America,  256;   enforcement  of,  256 
Corrupt  Practices,  in  campaigns,   246; 
definition  of,  249;    legislation  on,  in 
England  and  America,  249-250;   and 
party    committees,    250;     and   party 
officers,   250;    and   campaign  contri- 
butions, 251-253;    and  corporations, 
252,  253;   and  expenditures,  253-256; 
enforcement   of,   acts,    256,    257;    at 
elections,  262.     See  Campaigns,  Can- 
didates, and  Conventions 
Cost  Accounts,  and  efficiency,  462 
Council  of   Censors,   proposes  amend- 
ments, 280 
Council    of    New    England,    grant    to 

Plymouth,  35 
Counties,  in  Virginia,  181 
Court  Decisions.     See  Judicial  Decisions 
Courtney,    L.    J.,    on    candidates    and 

issues,  194 
Court  Proceedings,  contempt  of,  428 
Courts,   distrust   of,    114;    and  official 
responsibility,  409,  410;    disturbance 
of,  428;    disobedience  of,  429;    bri- 
bery of,  429;    open  to  public,  434; 
appellate  jurisdiction  of,  434 
Crawford    County    (Pa.),    direct    pri- 
maries in,  235 
Curtis,  G.  W.,  and  civil  service,  416 

F)EBTS,  illegal,  restrained  by  injunc- 
tion, 116 

Delaware,  constitution  of,  72,  73; 
party  committees  in,  199;  conven- 
tions in,  211 

Delegates,  method  of  selecting,  214, 
229;  first  and  second  choice  for,  217; 
cast  party  vote,  217 

Democracy,  in  colonies,  180;  spread 
of,  438;  under  monarchies,  439;  and 
present  problems,  439;  dissatisfac- 
tion with,  440;  in  towns  and  cities, 
440-443;    and  the  "Boss,"  443,  444; 


and  reform  movements,  444,  445; 
and  citizen  research,  445;  and  re- 
sponsibility of  women,  446;  and 
private  initiative,  450;  and  public 
control,  450 

Democratic  Societies,  in  election  of 
1794,  196;  opposed  by  FederaUsts, 
196 

Denver,  woman  suffrage  in,  161 

Dicey,  on  sovereignty,  292 

Dillon,  J.  F.,  on  access  to  records,  404 

Dissenters,  in  New  England,  133 

Distribution  of  Power,  among  federal, 
state,  and  local  agencies,  76;  among 
officers,  78;  in  financial  matters,  78 

Division  of  Powers,  in  United  States, 
64,  77;  in  England,  77 

Doyle,  J.,  on  slavery  in  Carolinas,  54 

Duke  of  York,  charter  of,  48 

Dutch,  in  New  York,  49;  sold  as  slaves, 
136 

"pATON,  D.  B.,  on  civil  service,  416 
Educational  Qualifications,  for  suf- 
frage in  North,  171,  172,  in  South, 
173.  174  _ 

Efficiency,  in  government,  451,  463;  in 
business,  452;  and  budget  making, 
45S~4S8;  and  balance  sheet,  459, 
460;  and  cost  accounts,  462-464; 
and  co-operation,  462-464 

Election  Officers,  bi-partisan,  266,  267; 
how  chosen,  267;  watchers  and 
challengers,  267 

Elections.  See  Ballots,  Campaigns, 
Candidates,  Conventions,  etc. 

Electoral  Assemblies,  absence  of,  in 
Virginia,  181;  in  boroughs,  181;  in 
Maryland,  181,  182;  in  New  England 
towns,  183,  189;  unwieldy,  186; 
abandoned  in  Boston,  187;  advan- 
tages of,  189;  government  by,  275; 
become  representative,  276 

Electorate,  functions  of,  74,  220,  274, 
322;  and  citizen  will,  106;  broaden- 
ing of,  106;  in  a  pure  democracy, 
180;  low  ideals  of,  245;  and  govern- 
ment, 274;  and  constitution  making, 
276;  a  governmental  agency,  316; 
and  election  safeguards,  376;  igno- 
rance of,  454;  and  public  informa- 
tion, 455 

Eliot,  Hugh,  charter  of,  24 

England,  industrial  supremacy  in,   16; 


Index 


473 


colonial  policy  of,  56,  57;  and  land 
ownership,  57;  and  democratic  ideals, 
131;  and  corrupt  practices,  249 
Executive  OfScers,  power  over  legis- 
lation, 395 ;  responsibility  of,  410; 
can  not  suspend  laws,  411;  and  sus- 
pension of  habeas  corpus,  412;  and 
the  militia,  412;  and  the  budget, 
456-458;  and  the  balance  sheet,  459; 
and  operating  accounts,  460;  need 
reports,  461;  and  cost  accounts,  462 

pEDERAL  CONVENTION,  on  elec- 
tion of  president,  397 

Federalist,  and  natural  rights,  390 

Federalists,  and  party  organization, 
210,  211 

Feudal  Towns,  grant  local  autonomy, 
18 

Feudalism,  and  industry,  14;  milita- 
rism of,  14;  and  localized  welfare, 
14;  adaptations  under,  15;  basis  of 
proprietary  grants,  46 

Fish,  C.  R.,  on  patronage,  415 

Freedom,  from  feudal  exactions,  15;  of 
thought,  82;  of  speech  and  press, 
88,  89,  90,  371;  from  arrest,  371 

"Freedoms,"  gained  by  usage,  17; 
granted  to  Ipswich,  17,  18;  basis  of 
modem  state,  21 

Fundamental  Orders,  of  Connecticut, 
38;   government  of,  38 

QARFIELD,  J.  A.,  and  civil  service, 
417 

General  Welfare,  principle  of,  60;  in 
colonies,  60 

Georgia,  charter  of  1732,  31;  induce- 
ment to  settlers  in,  31,  32;  governed 
by  non-residents,  32 

Gilbert,  Sir  Henry,  24 

Government,  problems  of,  63 ;  power  to 
alter,  64;  de  facto  and  de  jure,  65,  66; 
creature  of  sovereign,  66;  as  a  trustee- 
ship, 73;  delegation  of  power  in,  74; 
distribution  of  powers  in,  75,  76; 
problems  of,  79;  libel  of,  85;  slander 
of,  86;  analysis  of  functions  of,  154; 
equality  under,  247;  classification 
of  functions  of,  274;  and  the  elec- 
torate, 274;  federal,  state,  and  local, 
294,  295;  repubHcan,  defined,  311; 
local  and  state,  317;  purposes  of,  447, 
448;     and    co-operation,    449;     and 


personal  freedom,  449;  increase  in 
activities  of,  450;  and  efficiency 
plans,  451,  452;  and  electoral  con- 
trol, 453;  and  official  control,  453; 
division  of  powers  under,  454 

Governor,  influence  over  legislation, 
37S;   methods  of  selecting,  395,  397 

Grand  Juries,  and  citizen  information, 
119,  120 

Gross,  C,  Gild  Merchant,  17 

Guilds,  and  industry,  20 

f^ABEAS  CORPUS,  suspension  of, 
412 

Hart,  A.  B.,  on  privileges  of  citizens, 
151,  152 

Haynes,  G.  H.,  on  election  of  senators, 
365 

Hecker,  E.  A.,  on  woman  suffrage,  167 

Heresy,  punishment  for,  83 

Hughes,  C.  E.,  and  direct  primaries, 
237;  on  selection  of  administrative 
officers,  272;  and  influence  over  leg- 
islation, 381;  on  election  of  officers, 
397 

JMPEACHMENT,  of  officers,  406; 
processes  of,  407 

Independence,  of  colonies,  61 

Industrial  Commission  of  Wisconsin, 
powers  of,  121;  and  citizen  co-opera- 
tion, 121,  122;  committees  of,  122, 
123;   and  expert  citizen  aid,  123,  124 

Industrial  Organization,  and  human 
wants,  7,  8;  predatory  character  of, 
7,  8;  and  local  self-government,  8; 
in  Asia,  12 

Industrial  Welfare,  dominant  in  Amer- 
ica, 61;    resisted  absolutism,  61 

Industry,  and  political  organization,  5; 
adaptation  of ,  to  soil,  6;  division  of 
labor  in,  7;  primitive,  10;  and 
absolutism,  11;  under  feudalism,  14; 
advantages  of,  16;  and  guilds,  19,  20; 
specialization  of,  20;  nationalized,  22; 
demands  miUtary  protection,  22 

Initiative,  in  legislation,  297;  and 
amendments,  336;  use  of,  in  Oregon, 

341 
Initiative  and  Referendum,  burdens 
voters,  220;  mandatory,  335;  pro- 
visions of,  336;  signature  of  voters  for, 
337;  defects  in  provisions  of,  337; 
use   of,  in    South  Dakota,    338,   in 


474 


Index 


Oklahoma,  338;  votes  on  measures  of, 
338-340;  in  Missouri,  330,  in  Oregon, 
339;  measures  printed  by  state,  340; 
Ln  cities,  353,  354;  under  Commission 
government,  354,  355;  in  Home  Rule 
cities,  355;  and  electoral  control,  379 

Injunctions,  mandatory  and  preventive, 
lis;  ioT  delivery  of  books,  115,  116; 
against  iDegal  appropriations,  116, 117 

Institutions,  result  of  competition,  15; 
slow  changes  in,  131;  growth  of,  179 

Internal  Improvements,  and  state  aid, 
32s 

Iowa,  referendum  on  banks  in,  329 

JACKSON,  ANDREW,  and  patron- 

J         age,  41S 

Jamestown,  population  of  (1675),  185 

Jefferson,  Thomas,  on  town  and  county 
government,  189 

Jews,  excluded  from  suffrage,  135 

Johnson,  Samuel,  on  convicts  in  Amer- 
ica, 136 

Judges,  and  parties,  430;  and  welfare 
question,  431;  and  labor  risks,  431; 
and  common  law,  431;  recall  of, 
431-433;  and  public  questions,  433; 
removal  of,  435;  and  private  rights, 
435 

Judicial  Decisions,  on  access  to  records, 
108-110;  on  the  referendum,  ch. 
xxii;  Wales  v.  Belcher,  303,  307,  308; 
Goddin  v.  Crump,  304,  307,  310; 
Rise  V.  Foster,  305,  306,  31 1-3 13; 
Parker  v.  Commonwealth,  307,  313, 
320;  Burgess  v.  Pue,  308,  310;  Pacific 
State  Telephone  and  Telegraph  Co. 
V.  Oregon,  310,  311;  Texas  v.  White, 
311;  ex  rel.  Wall,  312;  People  ex 
rel.  V.  Reynolds,  314;  Talbot  v.  Dent, 
315;  Bancroft  v.  Dumas,  318-320; 
Barto  V.  Himrod,  320;   recall  of,  434 

Judicial  Officers,  appointment  of,  427; 
federal  427;  election  of,  428;  tenure 
of,  428.     See  Officers 

Judicial  Rights,  of  citizens,  436;  before, 
during,  and  after  trial,  437 

jr^ING,  treason  against,  85 

King  John,  and  the  Barons,  92 
King,  John,  on  registration  of  voters, 

223 
Know  Nothing  Party,  and  alien  voters, 

170 


LAW  OF  ADVANTAGE,  economic, 
4;  and  the  family,  4;  and  co- 
operation, s;   and  survivals,  15 

Laws,  suspension  of,  411 

Legal  Bureaus,  need  of,  247 

Legislation,  under  written  constitu- 
tions, 295,  296;  in  local  units,  296; 
method  of,  296;  by  initiative,  297; 
by  referendum,  297-302,  322;  can  not 
be  delegated,  316 

Legislators,  privileges  of,  370,  371; 
freedom  of  speech  of,  371;  freedom 
from  arrest  of,  371,  372;  and  lob- 
byists, 372;  bribery  of,  373,  374; 
and  executive  influence,  374,  375; 
and  election  machinery,  377;  peti- 
tion of,  377,  378;  and  pubUc  hear- 
ings, 378;  security  of,  380;  and  the 
constitution,  380,  381;  recall  of,  381; 
pubhsh  journal,  385;  inhibitions  on, 
391,  392;  confidence  in,  392;  dis- 
trust of,  393 

Legislatures,  and  amendments,  73, 
284-287;  method  of  selecting,  358; 
and  election  of  U.  S.  Senators,  366, 
367;  record  of  votes  in,  384;  and 
election  of  governor,  395;  inquiries 
by,  406;  and  removal  of  officers,  408 

Lewis,  L.,  on  woman  suffrage,  161 

Libel,  of  government,  85,  86;  defined, 
87 

Lincoln,  Abraham,  and  suspension  of 
habeas  corpus,  412 

Litigations,  inequality  of  parties  in, 
247 

Lobbying,  evils  of,  372;  regiJation  of, 
372,  373 

Lobbyists,  and  special  interests,  159 

Locke,  John,  constitution  of,  53,  134, 
140 

Los  Angeles,  recall  of  officers  in,  401 

^ADISON,  JAMES,  on  election  of 

Senators,  359 

Maine,  part  of  Massachusetts,  49; 
referendum  in,  298 

Mandamus,  defined,  117;  use  of,  varies 
in  states,  118;  and  ouster  proceed- 
ings, 118 

Maryland,  grant  of  1632,  47;  repre- 
sentative assembly  in,  47;  becomes 
royal  colony,  48;  hundred  assembly 
in,  182;  corrupt  practices  act  of,  253; 
political  contributions  in,  255;   ref- 


Index 


475 


erendum  in,  298,  299;  indirect  elec- 
tion of  state  senators  in,  358 

Mason,  John,  and  New  Hampshire 
grant,  51 

Massachusetts,  early  settlements  in, 
28;  charter  of,  29;  and  pubUc  morals, 
117;  suffrage  quaUfications  in,  133, 
137;  referendum  on  woman  suffrage 
in,  162,  171;   referendum  in,  298,  343 

Massachusetts  Bay,  membership  in,  30; 
representative  assembly  in,  30 

May,  T.  M.,  on  right  of  petition,  378 

Mayflower  Compact,  35;  based  on  con- 
sent, 68,  69 

Mayor,  control  over  legislation,  395; 
methods  of  selecting,  399,  4CX5; 
recall  of,  401 

Merriam,  C.  E.,  on  selection  of  officers, 
357 

Michigan,  referendum  in,  325 

Military  Leadership,  ethics  of,  244 

MiUtia,  subordinate  to  civil  authority, 
93;  and  the  federal  constitution,  94; 
executive  control  over,  413 

Mill,  James,  on  woman  suffrage,  163 

Mill,  J.  S.,  favors  woman  suffrage,  163 

Mill,  J.  S.  (Mrs.),  on  woman  suffrage, 
164 

Missouri,  election  officers  in,  267; 
referendum  in,  349 

Monarchy,  and  executive  responsibil- 
ity, 438 

Modem  State,  rise  of,  21;  based  on 
consent,  21;  industrial  character  of,  22 

Municipal  Research  Bureaus.  See  Bu- 
reau of  Municipal  Research 

Municipalities.    See  Cities 

]S^ATURAL  RIGHTS,  in  FederaUst, 
390;  in  federal  and  state  con- 
stitutions, 391 

Nebraska,  campaign  expenditures  in, 
255;  and  election  of  Senators,  363, 
364 

Nelson,  H.  L.,  on  advantages  of  town 
government,  187,  190 

New  England,  moral  qualifications  for 
voters  in,  136;  towns  in,  183;  town 
government  in,  187;  stabiUty  of  con- 
stitutions in,  190 

New  England  Council,  and  charter  of 
Massachusetts  Bay,  29 

New  Hampshire,  grant  to  Mason,  51; 
boundary      controversies      in,     52; 


becomes  royal  province,  52;  repre- 
sentative assemblies  in,  52;  nomina- 
tions in,  212;  Council  of  Censors  in, 
280 

New  Haven,  union  with  Connecticut, 
39,  44;  a  theocracy,  43;  government 
of,  43;  representative  assemblies  in, 
43,  44;  suffrage  quaUfications  in,  134 

New  Jersey,  grant  to  Berkeley  and 
Carteret,  50;  representative  assem- 
bly in,  50;  woman  suffrage  in,  164, 
165;  party  conventions  in,  210;  pri- 
mary laws  in,  234;  corrupt  practices 
act  of,  254;  referendum  in,  326; 
election  of  U.  S.  Senator  in,  368 

Newspapers,  and  party  issues,  197,  200 

New  York,  grant  to  Duke  of  York,  48; 
government  of,  49;  representative 
assembly  in,  49,  50;  and  citizen 
arrests,  124;  suffrage  in,  146;  con- 
vention of  1821,  146;  village  com- 
munities in,  183;  nominations  in, 
203;  registration  of  voters  in,  222; 
registration  laws  of,  223-226;  primary 
districts  in,  229;  party  enrolment  in, 
231;  primary  laws  of,  234;  direct 
primaries  in,  237;  campaign  contri- 
butions in,  254;  ballot  laws  of,  264; 
voting  machines  in,  266;  election 
laws  of,  268;  referendum  in,  351; 
removal  of  officers  in,  408;  civil  serv- 
ice in,  423,  424;  contempt  proceed- 
ings in,  428 

Nominations,  methods  of,  202;  by 
candidates,  202;  in  New  England, 
203;  by  correspondence,  203;  by 
caucuses,  204,  not  representative, 
205;  in  Pennsylvania,  205,  217; 
by  mass  meetings,  205;  methods  of 
voting  in,  206;  by  county  conven- 
tions, 206;  by  state  conventions, 
209,  210;  by  state  legislatures,  213; 
by  national  conventions,  213;  cor- 
rupt practices  in,  216;  reform  move- 
ments in,  216,  217;  controlled  by  law, 
228;  primary  districts  in,  229; 
variety  in  methods  of,  234;  by  peti- 
tion, 237;  by  party  committees,  237, 
240;  minority  vote  in,  239;  by  direct 
vote  and  convention,  239;  and 
vested  interests,  249.    See  Candidates 

Nonconformity,  punishment  for,  84 

Norman  Conquest,  predatory  character 
of,  16 


476 


Index 


QBERHOLTZER,    E.    P.,    on    local 
referendum,  352 

Office,  title  to,  119 

Officers,  functions  of,  74;  responsi- 
bility of,  75;  usurpation  of  power  by, 
75;  as  custodians,  77,  78;  limited 
tenure  of,  78,  79;  and  citizen  con- 
trol, 98;  as  educators  of  public  will, 
98,  99;  aided  by  citizens,  100;  mis- 
conduct of,  115;  restrained  by  in- 
junction, 116;  and  citizen  co-oper- 
ation, 125;  and  citizen  agencies,  126, 
129;  seek  expert  citizen  aid,  128; 
control  of,  272;  administrative,  272; 
elective  and  appointive,  357,  396, 
397;  appointive  in  colonies,  358; 
elective,  in  states,  358;  administra- 
tive and  legislative,  394;  selection 
of  administrative,  400;  reports  of, 
405;  impeachment  of,  406,  407; 
removal  of,  407-409;  inhibitions  on, 
410,  411;  and  poUtical  service,  414; 
co-operation  of  women  with,  447; 
duties  of,  454 

Offices,  aboUtion  of,  409 

Official  Reports,  on  expenditures,  405, 
406 

Officials,  executive,  need  information, 
455 ;   and  the  budget,  455,  456 

Oglethorpe,  James,  aims  of,  31;  influ- 
ence of,  32 

Operating  Accounts,  purpose  of,  460, 
461 

Oregon,  campaign  literature  in,  259; 
initiative  and  referendum  in,  341; 
election  of  Federal  Senators  in,  367, 
368;  recall  in,  381,  382 

Organization,  economic  necessity  of,  10; 
for  citizen  welfare,  loi,  102 

Ownership,  based  on  discovery,  23, 
subject  to  sovereign,  23;  theory  of, 
57 

PARISHES,  in  South  Carolina,  182; 
election  of  officers  in,  182 

Parliament,  privileges  of  members  in, 
371;   prorogation  of,  380 

Parliamentary  Procedure,  in  England, 
100;  in  France,  100,  loi 

Parties,  disintegration  of,  213;  and 
city  elections,  240;  misrepresenta- 
tion of  issues  by,  246;  unequal  funds 
of,  249;  and  civil  service  employees, 
422.    See  Nominations 


Party  Committees,  define  issues,  199; 
election  of,  199 

Party  Contributions,  regulation  of,  251; 
expenditures  of,  251;  by  corpora- 
tions forbidden,  252.  See  Campaign 
Funds  and  Expenditures 

Party  Issues,  formulated  by  press,  193, 
197,  200,  by  candidates,  193,  198; 
and  campaign  Uterature,  200 

Party  Platforms,  formulated  by  con- 
ventions, 197,  198;  under  the  direct 
system,  241.  See  Conventions  and 
Nominations 

Pastoral  Society,  in  Asia  and  Africa,  5 

Patronage.     See  Civil  Service 

Patroons,  of  New  York,  183;  rights  of, 
184 

Pendleton,  G.  H.,  and  civil  service,  417 

Penn,  Wm.,  in  Pennsylvania,  51;  gov- 
ernment of,  51 

Pennsylvania,  grant  to  Penn,  51;  nomi- 
nations in,  203,  209;  primary  reform 
in,  217;  party  rules  in,  217;  registra- 
tion of  voters  in,  226;  election  of 
delegates  in,  229;  bi-partisan  election 
boards  in,  266 

Petition,  right  of,  guaranteed,  90;  in 
England,  and  the  Colonies,  90,  410; 
of  officers,  400 

Philanthropy,  aided  by  private  wealth, 
105;   becomes  a  pubhc  function,  105 

Plymouth,  settlement  of,  34,  35;  gov- 
erned by  people,  36;  codification  of 
laws  in,  36;  compulsory  voting  in, 
36;  representative  assembly  Ln,  36; 
united  with  Massachusetts,  37;  early 
government  of,  69 

Plymouth  Compact,  provisions  of,  275 

Predation,  and  industry,  7;  based  upon 
military  power,  8,  9;  and  slavery,  9; 
and  modem  society,  10 
President,     power     over     militia,     94; 
method   of   electing,    397;    and   the 
budget,  456 
Presidential  Electors,  method  of  elect- 
ing, 398 
Primaries,   first  and  second  choice  in, 

217,  239,  241;  in  Crawford  Co.  (Pa.), 

218,  23s;  opposition  to  direct,  218; 
regulated  by  law,  229;  simultaneous, 
229;  ballots  in,  230;  challenge  of 
voters  in,  230;  secrecy  in,  231;  enrol- 
ment of  voters  in,  231,  232;  open  in 
Wisconsin,     233;     spread    of,     236; 


Index 


477 


similarity  in  laws  of,  236;    elimina- 
tion of  candidates  in,  237,  238;  nomi- 
nations   of,     by     committees,     238; 
plurality  vote  in,  239,  241;  in  Des 
Moines,  240;    and  formation  of  plat- 
forms,  241;  and  election  of  Federal 
Senators,  363-366.     See  Candidates, 
Convention,  Nomination 
Private  Aid,  to  scientific  research,  104 
Private  Corporations,  origin  of,  20 
Property,  qualification  for  suffrage,  137 
Proprietary     Colonies,     monopoly     of 
proprietor,  46;    during  the  Restora- 
tion, 47 
Prorogation,  of  legislatures,  380 
Public  Hearing,  in  New  York,  378 
Public  Morals,  protected  by  injunction, 

117 
Public  Records,  access  to,  108,  120,  403, 
404;   uniformity  in,  405;   and  execu- 
tive ofl&cers,  405 
PubUcity,  in  legislation,  384,  385 
Puritans,  in  New  England,  133 

QUAKERS,  excluded  from  suffrage, 

135 
Quo  Warranto,  at  common  law,   118, 
119;  use  of,  in  United  States,  119 


D  AILROADS,  referendum  on  aid  to, 
330 

Raleigh,  Sir  Walter,  24 

Recall,  a  function  of  voters,  126;  of 
legislators,  381;  in  municipalities, 
382;  in  California  and  Oregon,  382, 
383;  conservatism  in  use  of,  383,  384; 
of  mayors,  401,  402;  weakness  of, 
402;  of  judges,  431-433;  of  judicial 
decisions,  434 

Records,  open  to  inspection,  107;  access 
to,  108,  120;  and  reports,  461 

Reference  Bureaus,  legislative,  384 

Referendum,  on  woman  suffrage,  168; 
and  early  constitutions,  276;  analysis 
of,  277;  on  constitutional  conven- 
tions, 282;  on  amendments,  283,  286; 
legislative,  296,  297;  on  school  ques- 
tions, 298,  299,  302,  330;  in  Boston, 
299;  in  Maine,  299;  on  liquor  laws, 
299,  300,  353;  in  counties,  300,  301; 
on  local  acts,  300,  314-317,  323;  in 
dties  and  towns,  301,  302;  on  levee 
districts,  302;  in  Massachusetts,  303, 


304;    in  states,  304-307;    and  court 
decisions,  ch.  xxii;   and  written  con- 
stitution,   305,    310,   312,  313,    319, 
321;   and  representative  government, 
310,311,321;  summary  of  arguments 
for,  315,  316;  in  Vermont,  318,  319; 
on  general  laws,  318,  320,  323,  324; 
on  negro  suffrage,  324;  on  boundaries, 
324;  on  state  debts,  325,  326;  on  loca- 
tion of  capital,  327,  328;  on  banks, 
329;  in  Iowa,  329;  on  aid  to  railroads, 
330;  on  franchises,  331;   in  Missouri, 
331.  346;  on  taxation,  331,  332,  345- 
348;   on  expenditures,  332;  in  Colo- 
rado, 332;  siunmary  of,  332;  on  divi- 
sion of  counties,  343;    on  location  of 
county  seats,  344;    on  township  or- 
ganization, 345 ;    in  Maryland,  345; 
on  creation  of  indebtedness,  348-350; 
on  judicial  matters,  351-352;  on  court 
decisions,  434.  See  Initiative  and  Ref- 
erendum 
Registration   of   Voters,    simplicity    in 
early,    221;     periods    of    growth    in, 
222;    in  New  York,  222,  223;    and 
purity    of    elections,    223;     personal, 
223,  225;    units  of,  224;    officers  for, 
224;  by  signature,  225,  226;  descrip- 
tion of  voters  in,  226;   and  affidavit, 
226 
Religious  Freedom,  guaranteed,  389 
Removal  of  Officers.     See  Officers 
Representation,  based  upon  community 
of  interest,  21;  in  Massachusetts  Bay, 
30;     in    American   government,    62; 
in  party  conventions,  215 
Representative    Assembhes,    in    Plym- 
outh, 36;  in  Connecticut,  38,  39;  in 
Rhode    Island,  42;    in  New  Haven, 
44;  in  Vermont,  45;  in  Maryland,  47; 
in  New   York,  49,    50;    in   Pennsyl- 
vania,  51;    in   New  Hampshire,   52; 
in  proprietary  and   royal   provinces, 
61 
Representatives,  right  to  instruct,  91 
Religion,  freedom  of,  86,  87 
Revolutionary  War,  causes  of,  131 
Rhode  Island,  a  voluntary  association, 
39,   40;     towns    in,    40;     charter    of 
1643,  41;   assemblies  in,  41,  42;   ref- 
erendum in,  300,  325 
Roman    Catholics,    in    Maryland,    47; 

excluded  from  suffrage,  134,  135 
Rome,  and  welfare  ideals,  14 


478 


Index 


Roosevelt,  T.,  and  civil  service,  420; 
and  recall  of  judicial  decisions  434 

gAGADAHOC,  settlement  of,  24,  25; 
failure  of,  28 

School  Lands,  referendum  on,  330 

Schools,  suffrage  on,  extended  to 
women,  166;   referendum  on,  298 

Schurz,  Carl,  and  civil  service,  416 

Segur,  Count,  on  equaUty  of  sexes, 
163 

Senate,  closed  sessions  of  Federal,  386 

Senators,  indirect  election  of  Federal, 
359,  360;  direct  election  of,  363;  state 
laws  on  election  of,  363,  in  South, 
364;  and  direct  primaries,  364;  elec- 
tion of,  in  Nebraska  and  Oregon,  365; 
popular  designation  of ,  365-367;  votes 
on,  368 

Sheriff,  and  arrests,  125 

Sherman,  Roger,  on  election  of  Federal 
Senators,  359 

Short  Ballot,  movement  of,  220,  271; 
defects  of,  272.     See  Ballots 

Slander,  of  government,  86 

Slavery,  in  colonies,  147;  disappears  in 
North,  148 

Social  Organisms,  evolution  of,  4 

Social  Surplus,  waste  of,  13 

South  Carolina,  suffrage  qualifications 
in,  13s,  136.     See  Carolinas 

South  Dakota,  initiative  and  referen- 
dum in,  335 

Sovereignty,  and  conquests,  7;  and 
community  welfare,  13;  under  feu- 
daHsm,  15;  based  on  consent,  61, 
62;  and  citizenship,  63,  66;  during 
confederation,  63;  divided,  64; 
popular,  72;  and  citizen  will,  98; 
limitations  on  popular,  439 

Spencer,  Chief  Justice,  on  registration 
of  voters,  222 

Spencer,  Herbert,  on  co-operation,  4 

Spoil  System.     See  Civ'il  Service. 

State  Attorneys,  in  criminal  cases,  115; 
need  of,  in  civil  suits,  115 

State  Control,  over  elections,  257 

State  Debts,  referendum  on,  325,  326 

Suffrage  Quahfications,  residence,  132; 
age,  132;  "freemen,"  132;  sex,  133, 
154-168;  church  membership,  133;  in 
Massachusetts,  134,  139;  moral,  136; 
convicts  excluded  from,  136;  an  im- 
portation  from   England,   137,   138; 


property,  138-141;  after  revolution, 
141,  142;  in  Virginia,  142;  payment 
of  taxes,  143,  144;  freehold,  in  Vir- 
ginia, 143;  abolished,  143,  145;  serv- 
ices to  the  state,  145;  manhood,  145, 
146;  indented  servants  excluded,  148; 
slaves  excluded,  148;  summary  of, 
149;  and  community  needs,  153, 
154;  granted  to  non-citizens,  170; 
amended  in  Massachusetts,  171;  ex- 
tension of  citizenship,  171;  educa- 
tional, 171;  reading  and  writing  test, 
171,  172;  educational  test  in  South, 
173,  174;  property,  in  South,  174; 
exclusion  of  paupers,  insane,  crimi- 
nals, 175;  exclusion  for  bribery,  mal- 
feasance, immorality,  176.  See 
Woman  Suffrage 

Sumner,  H.,  on  woman  suffrage  in 
Colorado,  156,  161 

Sumner,  W.  G.,  on  industrial  conflicts,  8 

Survival,  based  on  force,  10 

'pAFT,  W.  H.,  on  the  recaU  of  judges, 
_  431-433 

Taxation,  referendum  on,  331 

Taxpayers,  right  of,  to  inspect  records, 
107,  108,  109;  right  to  injunction, 
116 

Texas,  referendum  in,  on  debts,  327 

Tenure  of  Office,  limited,  78,  79 

Third  Estate,  origin  of,  in  England,  16, 
17 

Thompson,  Wm  ,  opposes  woman  suf- 
frage, 163 

Town  Government,  advantages  of,  187; 
decadence  of,  189;  protects  local 
interests,  190 

Town  Meetings,  in  New  England,  188; 
and  citizen  interest,  188 

Towns,  in  Connecticut,  37;  in  Rhode 
Island,  40;  in  New  England,  182, 
187;  as  industrial  units,  183,  186; 
failure  of,  in  Virginia,  184,  185; 
electoral  assembUes  in,  186;  Jefferson 
on,  190;  and  democracy,  442 

Townships,  of  Teutons,  5;  in  Massa- 
chusetts, 30 

Treason,  punishment  for,  84,  85;  de- 
fined, 87 

Trusteeship,  elements  of,  73,  74 

TJNION,  of  thirteen  states,  62;  based 
upon  popular  control,  62,  63 


Index 


479 


yAN  BUREN,  MARTIN,  on  regis- 
tration of  voters,  222 

Van  Cortlandt,  Pierce,  nomination  of, 
202 

Vermont,  a  voluntary  association,  45; 
representative  assembly  in,  45 ;  Coun- 
cil of  Censors  in,  281;  referendum 
in,  318,  319 

Village  Communities,  in  the  East,  5 

Villages,  in  New  York,  183,  184 

Virginia,  charter  of  1606,  21;  failure 
of  early  settlements  in,  21;  charter  of 
1609,  25;  as  an  investment  company, 
26;  encourages  settlers,  26,  27; 
suffrage  in,  138;  county  courts  in, 
181;  absence  of  towns  in,  185 

Virginia  Corporation,  aids  colonial  enter- 
prise, 27;  a  miUtary  despotism,  27,  28; 
grants  assembly,  28;  dissolved,  28 

Voters,  freedom  of,  from  arrest,  178; 
protected  by  secret  ballot,  178; 
protection  of,  221.  See  Suffrage 
Qualifications 

Votes,  how  counted,  268 

Voting,  a  duty  and  privilege,  177 

Voting  Machines,  265,  266 

V\7^ANTS,  satisfaction  of,  4,  6,  449 

Ward,  Lester  F.,  on  social  organ- 
isms, 4 

Warfare,  and  feudaUsm,  14,  15 

Welfare,  economic,  ii 

Welfare  Activities,  of  citizens  and 
government,  102 

Welfare  Organizations,  in  cities,  102 

Wells,  Dora,  manuscript  of,  45 

WilUams,  Roger,  and  Providence  Plan- 
tation, 40 


Wilson,  James,  on  election  of  senators, 
359 

Wisconsin,  Industrial  Commission  of, 
121;  party  affiUation  in,  233;  Legis- 
lative Reference  Bureau  of,  384 

WoUstonecraft,  Mary,  on  rights  of 
women,  163 

Woman  Suffrage,  in  Western  states, 
149;  and  welfare  needs,  154,  156; 
and  war,  155;  and  protection  of  the 
home,  155;  and  property  rights,  155; 
and  education  of  children,  156;  and 
charity,  157;  and  public  health,  157; 
and  factory  legislation,  157;  and 
public  utilities,  158;  referendum  on, 
162;  movement  in  England,  163; 
in  Colonies,  164;  in  New  Jersey,  164, 
165;  in  the  West,  166;  in  school 
elections,  166;  on  financial  measures, 
167;  for  all  elections,  167;  extension 
of,  in  1912,  168 

Women,  promote  welfare  needs,  105, 
446,  447;  restrictions  on,  153;  quali- 
fied for  suffrage,  154,  155;  social 
training  of,  159;  limited  by  conven- 
tions, 160;  votes  of,  in  Colorado,  160, 
161;  of  the  West  and  East,  162;  op- 
pose referendum  on  suffrage,  162; 
in  Anti-Slavery  Convention,  165; 
co-operate  with  officers,  447 

Worcester  and  Syracuse,  public  expendi- 
tures of,  188 

YEARDLEY,   SIR   GEORGE,   calls 
assembly,  28;  encourages  town 
building,  185 


THE  BANK  AND  THE  TREASURY 

Bank  Capitalization  and  the  Problem 
of  Elasticity 

By  Frederick  A.  Cleveland,  Ph.D.,  LL.D. 

REVISED  EDITION 

WITH  A  NEW    INTRODUCTION    (41pp.)     (1908). 

Crown  8vo.    420  pages.    $2.00  iV^i. 


This  is  a  scientific  and  exhaustive  treatise  on  the  under- 
lying principles  of  weakness  and  strength  in  our  banking 
and  currency  system.  The  new,  revised  edition  brings 
the  work  to  date,  special  attention  being  given  to  the 
panic  of  November,  1907,  and  to  critical  analysis  of  legisla- 
tion before  Congress  at  the  date  of  publication. 

"We  cannot  too  strongly  recommend  this  book  as  a  valuable 
addition  to  economic  literature.  It  is  a  volume  not  only  useful 
for  schools  of  commerce,  but  also  for  men  engaged  in  the  practical 
work  of  banking." — Wall  Street  Journal. 

"An  unusually  valuable  contribution  to  the  vexed  and  much 
debated  problem  of  providing  a  more  sound  and  elastic  system  of 
credit  funds  ...  a  volume  which  no  serious  student  of  the  subject 
can  afford  to  ignore." — New  York  Journal  of  Commerce. 

"  'The  Bank  and  the  Treasury  '  will  be  found  of  interest  to 
bankers  and  others  interested  in  our  complex  financial  system." 

— Financial  Age. 

"No  one  could  be  better  equipped  for  the  work,  nor  could  he 
have  chosen  a  more  timely  or  interesting  subject  than  '  The  Bank 
and  the  Treasury.'  " — Chicago  Banker. 

"A  much  needed  volume  which  discriminates  carefully  be- 
tween 'commercial'  and  'financial'  banking  ...  a  valuable 
sidelight  on  modem  business  methods." — Chicago  Post. 

«'  .  .  .  clearly  the  view  of  an  expert  who  understands 
financial  affairs  in  all  their  branches,  his  work  being  devoted  to 
the  specific  subject  of  a  sound  and  elastic  system  of  current 
credit  funds  .  .  .  the  volume  is  devoted  to  constructive  ideas 
which  will  be  read  and  appreciated  by  students  of  financial 
problems." — Transcript,  Boston. 


LONGMANS,  GREEN,  &  CO.  New  York 


CHAPTERS  ON  MUNICIPAL 
ADMINISTRATION  AND  ACCOUNTING 

By  Frederick  A.  Cleveland,  Ph.D.,  LL.D. 

Crown  8vo.     377  pages.     $2.00  Net. 

"Certainly  no  one  concerned  in  any  way  with  municipal 
affairs  can  fail  to  read  almost  any  one  of  the  papers  without 
great  profit,  or  without  partaking  of  some  of  the  zeal  of  the  author 
in  demanding  the  application  to  the  management  of  city  affairs 
of  the  best  possible  scientific  and  technical  principles  and 
practices." — American  Political  Science  Review  (May,  1910). 

"The  business  aspect  of  government  as  presented  by  Dr. 
Cleveland  is  a  timely  contribution  to  the  literature  now  appear- 
ing on  city  government.  There  is,  perhaps,  no  person  in  the 
United  States  to-day  better  qualified  to  speak  upon  the  subject 
from  the  accountant's  point  of  view." — TJie  Journal  of  Accounting 
Quly,  1909). 

"The  question  of  graft  in  city  government  is  discussed  by 
Dr.  Cleveland,  not  from  the  muck-raker's  viewpoint,  but  as  a 
natural  phenomenon  of  inefficient  government.  The  financial 
management  of  cities,  the  principles  of  budget-making,  and  the 
reform  of  mtmicipal  accounts  are  the  topics  to  which  Dr.  Cleve- 
land's book  is  chiefly  devoted.  His  discussion  of  these  matters 
is  rendered  doubly  interesting  from  the  many  illustrations  that 
he  cites  from  actual  experience  and  the  numerous  practical 
suggestions  that  he  offers  for  the  basis  of  a  reorganization  of 
municipal  finance." — Review  of  Reviews  (July,  1909). 

"A  simple  and  direct  treatise  on  the  business  aspects  of  the 
government." — N.  Y.  American. 

"Dr.  Frederick  A.  Cleveland,  who  is  director  of  the  Bureau 
of  Municipal  Research,  has  made  a  careful  study  of  the  question 
of  municipal  administration,  and  his  conclusions  deserve  careful 
attention.  .  .  .This  volume  goes  into  detail  with  a  fullness  which 
forbids  analysis  here." — The  Providence  Journal. 

"For  many  years  past  the  author  of  this  volume  has  been 
one  of  the  leaders  in  a  strong  movement  for  reform  in  American 
municipal  accounting.  His  work  from  the  start  has  been  so 
largely  of  a  practical  character  as  to  differentiate  it  from  the 
opprobrium  which  many  people  seem  to  think  attaches  to  the 
efforts  of  reformers." — The  Engineering  News  (July  15,  1909). 


LONGMANS,  GREEN,  &  CO.  New  York 


RAILROAD    PROMOTION    AND 

CAPITALIZATION    IN    THE 

UNITED  STATES 

By  Frederick  A.  Cleveland,  Ph.D.,  LL.D. 
and  Fred.  W.  Powell,  A.M. 

Crown  8vo.    382  pages.     Price  $2.00  Net. 


This  work,  the  first  of  the  kind  to  be  published,  is  both 
a  history  and  a  description  of  financial  methods.  It  may 
be  said  to  be  broadly  historical  in  that  it  gives  an  economicin- 
terpretation  to  American  history  which  has  been  so  closely 
interwoven  with  transportation  development.  While  it  is 
thoroughly  scientific,  the  materials  being  drawn  from  the 
widest  range  of  sources,  the  story  is  told  in  a  manner  to 
make  it  interesting  reading. 

"The  text  is  clear,  painstaking  and  fortified  with  reference 
to  authority  at  every  step.  The  volume  is  a  most  valuable 
contribution  to  that  sane  and  happily  increasing  literature  from 
which  may  be  gained  an  accurate  understanding  of  the  conditions 
vmder  which  the  railroad  system  of  the  United  States  has  grown." 
— American  Political  Science  Review  (November,  1909). 

"This  work  is  distinctly  the  best  of  all  recent  contributions 
to  the  history  of  railroad  construction.  .  .  .It  is  a  concrete  financial 
history  of  railroad  construction  in  the  aggregate.  .  .  .Every 
library  and  student  of  railway  history  should  have  a  copy  as  a 
bibliographical  reference  and  as  an  excellent  history  of  railroad 
construction." — Annals  of  the  American  Academy  (Nov.,  1909). 

"This  is  a  very  complete  and  comprehensive  critical  history 
of  the  whole  railroad  question,  and  will  make  a  very  valuable 
reference  book  for  students  of  the  railroad  problem.  It  is  the 
result  of  eight  years'  almost  continuous  study  and  research  in 
which  original  documents  have  been  hunted  from  their  remotest 
hiding  places." — Moody's  Magazine  {]\x\y,  1^0^). 

"The  book  has  a  very  practical  side  in  its  detailed  descrip- 
tion of  the  methods  and  results  of  present-day  financing.  This, 
in  connection  with  its  very  excellent  analytical  discussion  of  the 
financial  history  of  railways  in  the  country,  gives  the  book  a 
working  value  which  will  appeal  to  the  banker,  the  financier 
and  the  investor,  as  well  as  to  the  student  of  economics." — 
The  Business  World  (April,  1910). 

LONGMANS,  GREEN,  &  CO.  New  York 


>»r»ok  -""  •v.^iast^n+o  "tamped  below 


3  1158  00865  3148 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILIT 


AA    000  808  778    5 


rNiVERSi'^:  --.f  r.^  ,]    .:nu 


.KAh.X 


iii       [ 


i!  ill  I 


If' 

ill  ll  I li 


Mmm 


! 


{ 


mm 


1 


iiiiill 


iiinnHi'-ssffl 


ill 


;:S|p|;)|i|  II  j;jf«p|i 


""i'liniaiiiiiiill  III 
illlilliiliilliili! 


